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.
SYLLABUS
1.

CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; RIGHT OF CONFRONTATION NOT APPLICABLE TO

PRELIMINARY INVESTIGATION. 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. (Dequito and Saling Buhay vs. Arellano, L1336, May 28, 1948.)
2.

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.
3.

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 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.
4.

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.
5.

ID.; PRELIMINARY INVESTIGATION AS REMEDIAL IN NATURE. Preliminary investigation is eminently and

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

6.

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 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.
7.

ID.; PRELIMINARY INVESTIGATION; CURTAILMENT OF ACCUSED'S RIGHT TO CROSS-EXAMINE WITNESSES,

EFFECT OF. 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 not of such importance as to offend against the constitutional 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.
8.

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 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.
9.

WORDS AND PHRASES; "REMEDY" AND "SUBSTANTIVE RIGHT" EXPLAINED 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 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.
10.

CONSTITUTIONAL LAW; SUPREME COURT; EXTENT AND SCOPE OF THE POWER TO PROMULGATE RULES OF

PLEADING AND PRACTICE. 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.
DECISION
TUASON, J p:
The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampanga after he
had been bound over to that court for trial, praying that the record of the case be remanded to the justice of the peace
court of Masantol, the court of origin, in order that the petitioner might cross-examine the complainant and her witnesses
in connection with their testimony, on the strength of which warrant was issued for the arrest of the accused. The motion
was denied and that denial is the subject matter of this proceeding.
According to the memorandum submitted by the petitioner's attorney to the Court or First Instance in support of his
motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, the justice of
the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of
not guilty. "Then his counsel moved that the complainant present her evidence so that she and her witnesses could be
examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected,
invoking section 11 of Rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his
intention to renounce his right to present evidence," and the justice of the peace forwarded the case to the court of first
instance.
Leaving aside the question whether the accused, after renouncing his right to present evidence, and by reason of that
waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that the respondent judge
did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the
record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G. R. No. L-1336, recently promulgated,
in which case the respondent justice of the peace had allowed the accused, over the complaint's objection, to recall the
complainant and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained the
justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion of the justice of the
peace on the matter. We said that "while section 11 of Rule 108 defines the bounds of the defendant's right in the
preliminary investigation, there is nothing in it or any other law restricting the authority, inherent in a court of justice, to
pursue a course of action reasonably calculated to bring out the truth."
But we made it clear that the "defendant can not, as a matter of right, compel the 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 preliminary hearings; nor will the absence of a preliminary examination be an infringement of his right to
confront witnesses." As a matter of fact, preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial.
The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any
discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant
and his witnesses to testify anew.
Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner.
Moran, C.J., Paras, Pablo, Bengzon and Briones, JJ., concur.
Separate Opinions
FERIA, J., dissenting:
I am sorry to dissent from the decision.
The petitioner in the present case appeared at the preliminary investigation before the Justice of the Peace of Masantol,
Pampanga, and after being informed of the criminal charges against him and asked if he pleaded guilty or not guilty,
pleaded not guilty. "Then the counsel for the petitioner moved that the complainant present her evidence so that her
witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private
prosecutor objected to petitioner's motion invoking section 11, Rule 108, and the objection was sustained. In view thereof,
the accused refused to present his evidence, and the case was forwarded to the Court of First Instance of Pampanga.
The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the record of the case
be remanded to the justice of the peace of Masantol, in order that the petitioner might cross-examine the complainant and
her witnesses in connection with their testimony. The motion was denied, and for that reason the present special civil
action of mandamus was instituted.
It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in the justice of the
peace, was not a waiver of his alleged right to be confronted with and cross-examine the witnesses for the prosecution,
that is, of the preliminary investigation provided for in General Order No. 58 and Act No. 194, to which he claims to be
entitled, as shown by the fact that, as soon as the case was forwarded to the Court of First Instance, counsel for the
petitioner filed a motion with said court to remand the case to the Justice of the Peace of Masantol ordering the latter to
make said preliminary investigation. His motion having been denied, the petitioner has filed the present action in which
he squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him of the right to
be confronted with and cross-examine the witnesses for the prosecution, contrary to the provision of section 13, Article
VIII, of the Constitution.
In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and decide the question of validity or
constitutionality of said section 11 in connection with section 1 of Rule 108, because that question was not raised therein,
and we merely construed the provisions on preliminary investigation of Rule 108. In said case the writer of this
dissenting-opinion said:
"It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practising attorney, was the
one who prepared the draft of the Rules of Court relating to criminal procedure, and the provisions on preliminary
investigation in the draft were the same as those of the old law, which gave the defendant the right to be confronted with
and to cross-examine the witnesses for the prosecution. But the Supreme Court approved and adopted in toto the draft,
except the part referring to preliminary investigation which it modified, by suppressing said right and enacting, in its
stead, the provisions of section 11 of Rule 108 in its present form. I prefer the old to the new procedure. But I can not
subscribe to the majority decision, which is a judicial legislation and makes the exercise of the right of a defendant to be
confronted with and cross-examine the witnesses against him, to depend entirely upon the whim or caprice of a judge or
officer conducting the preliminary investigation."

But now the question of the validity of said section 11, Rule 108, is squarely presented to this Court for decision, we have
perforce to pass upon it.
Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to promulgate rules
concerning pleading, practice and procedure in all courts, but said rules shall not diminish, increase or modify
substantive rights." The Constitution added the last part of the above-quoted constitutional precept in order to emphasize
that the Supreme Court is not empowered, and therefore can not enact or promulgate substantive laws or rules, for it is
obvious that rules which diminish, increase or modify substantive rights, are substantive and not adjective laws or rules
concerning pleading, practice and procedure.
It does not require an elaborate 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 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 a substantive right because by exercising it, an
accused person may show, even if he has no evidence in his favor, that the testimonies of the witnesses for the prosecution
are not sufficient to indicate that there is a probability that a crime has been committed and he is guilty thereof, and
therefore the accused is entitled to be released and not committed to prison, and thus avoid an open and public
accusation of crime, the trouble, expense, and anxiety of a public trial, and the corresponding anxiety or moral suffering
which a criminal prosecution always entails.
This right is not a constitutional but a statutory right granted by law to an accused outside of the City of Manila because
of the usual delay in the final disposition of criminal cases in provinces. The law does not grant such right to a person
charged with offenses triable by the Court of First Instance in the City of Manila, because of the promptness, actual or
presumptive, with which criminal cases are tried and disposed of in the Court of First Instance of said city. But this right,
though not a constitutional one, can not be modified, abridged, or diminished by the Supreme Court, by virtue of the rule
making power conferred upon this Court by the Constitution.
Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the question of
constitutionality or validity of said section had not been squarely raised) do away with the defendant's right under
discussion, it follows that said section 11 diminishes the substantive right of the defendant in criminal case, and this
Court has no power or authority to promulgate it and therefore is null and void.
The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling Buhay vs. Arellano, that
the inferior or justice of the peace courts have discretion to grant a defendant's request to have the witnesses for the
prosecution recalled to testify again in the presence of the defendant and be cross-examined by the latter, does not
validate said provision; because to make the exercise of an absolute right discretionary or dependent upon the will or
discretion of the court or officer making the preliminary investigation, is evidently to diminish or modify it.
Petition is therefore granted.
PERFECTO, J., dissenting:
In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we said:
"In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not contravene the
constitutional provision guaranteeing to all accused the right 'to meet the witnesses face to face.' (Section 1 [17], Article
III.)
"Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant is entitled as a
matter of fundamental right to 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 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 petition should be granted and so we vote.
RESOLUTION ON A MOTION FOR RECONSIDERATION
March 8, 1949
TUASON, J p:
This cause is now before us on a motion for reconsideration.
In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G. R. No. L-1336: "The
constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings;
nor will the absence of a preliminary examination be an infringement of his right to confront witness. As a matter of fact,
preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under
the due process clause to a fair trial." We took this ruling to be ample enough to dispose the constitutional question
pleaded in the application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject.
It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article VIII, of the Constitution. 2
It is said that the rule in question deals with substantive matters and impairs substantive rights.
We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its predecessors, is an adjective law
and not a substantive law or substantive right. Substantive law creates substantive rights and the two terms in this
respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under
the legal system prior to the disturbance of normal relations. (60 C. J., 980.) Substantive law is that part of the law which
creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that
part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the
method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.)
As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for
committing them, as distinguished from the procedural law which provides or regulates the steps by which one who
commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it is
the first step taken in a criminal prosecution.
As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence which is "the mode and manner of proving the
competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings" is
identified with and forms part of the method by which, in private law, rights are enforced and redress obtained, and, in
criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence and practice. (State vs.
Capaci, 154 So., 419; 179 La., 462.) The entire rules of evidence have been incorporated into the Rules of Court. We can
not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied
in these Rules.
In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said:
"Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed
by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings
vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510,
2 Sup. 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 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 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 crossexamine the witnesses against him. The degree of importance of a preliminary investigation to an accused may be gauged
by the fact that this formality is frequently waived.
The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a
question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular
case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of
parties affected, as it is impossible to fix that boundary by general condition. (State vs. Pavelick, 279 P., 1102.) This being
so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must
be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or
deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's
power is not merely to compile, revise or codify the rules of procedure existing at the time of the Constitution's approval.
This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a
general, complete and comprehensive system of procedure, adding new and different rules without regard to their source
and discarding old ones.
The motion is denied.
Moran, C.J., Paras, Pablo, Bengzon, Briones and Montemayor, JJ., concur.
FERIA, J., dissenting:
I dissent.
The motion for reconsideration must be granted.
According to the resolution, the right of a defendant to be confronted with and cross-examine the witnesses for the
prosecution in a preliminary investigation granted by law or provided for in General Orders, No. 58, as amended, in force
prior to the promulgation of the Rules of Court, is not a substantive right but a mere matter of procedure, and therefore
this Court can suppress it in section 11, Rule 108, of the Rules of Court, for the following reasons:
First.

Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal

prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The entire rules of evidence have

been incorporated into the Rules of Court." And therefore "we can not tear down section 11 of Rule 108 on constitutional
grounds without throwing out the whole Code of evidence embodied in these rules."
Secondly.

Because, "preliminary investigation is not an essential part of due process of law. It may be suppressed

entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall
within the constitutional prohibition."
Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition. The difference is
somewhat a question of degree" . . . It is difficult to draw a line in any particular case beyond which legislative power over
remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix
that boundary by general condition . . . "This being so, it is inevitable that the Supreme Court in making rules should step
on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect
the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and
unsubstantial manner to his disadvantage."
Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not always well
understood. Substantive law is that part of the law which creates, defines, and regulates rights as opposed to objective or
procedural law which prescribes the method of enforcing rights. What constitutes practice and procedure in the law is the
mode or proceeding by which a legal right is enforced, "that which regulates the formal steps in an action or judicial
proceedings; the course of procedure in courts; the form, manner and order in which proceedings have been, and are
accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts
through their various 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 & Lawrence's Law Dictionary; Anderson Law Dictionary;
Bouvier's Law Dictionary.
Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil, criminal,
administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended, there are provisions which
create, define and regulate substantive rights, and many of those provisions such as those relating to guardianship,
adoption, evidence and many others are incorporated in the Rules of Court for the sake of convenience and not because
this Court is empowered to promulgate them as rules of court. And our old law of Criminal Procedure General Orders No.
58 grants the offended party the right to commence a criminal action or file a complaint against the offender and to
intervene in the criminal prosecution against him, and grants the defendant in the Court of First Instance (except in the
City of Manila) the right to bail, and to a preliminary investigation including his rights during said investigation, and the
rights at the trial, which are now reproduced or incorporated in Rules 106, 108, 110, and 111 of the Rules of Court,
except the rights now in question. And all these, and others not necessary for us to mention, are obviously substantive
rights.
(1)

As to the first argument, the premise "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 procedural law is another. Obviously they are different branches of the law. "Remedial
statute" is "a statute providing a remedy for an injury as distinguished from a penal statute. A statute giving a party a
mode of remedy for a wrong where he had none or a different one before . . . Remedial statutes are those which are made
to supply such defects, and abridge such superfluities in the common law, as arise either from the general imperfections
of all human law, from change of time and circumstances, from the mistakes and unadvised determination of unlearned
(or even learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third edition, pp. 1525, 1526.)
It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a rule of evidence
and therefore is also procedural." In the first place, the provisions of said section to the effect that "the defendant, after
the arrest and his delivery to the court has the right to be informed of the complaint or information filed against him, and
also to be informed of the testimony and evidence presented against him, and may be allowed to testify and present
witnesses or evidence for him if he so desires," are not rules of evidence; and in the second place, it is evident that most of
the rules of evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules of
evidence are substantive rights found in common law chiefly and growing out of reasoning, experience and common sense

of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing of evidence and the rules of
practice with respect thereto form part of the law of procedure, but the classification of proofs is sometime determined by
the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris
tantum presumption, hearsay and best evidence rule, parol evidence rule, interpretation of documents, competency of a
person to testify as a witness be considered procedural?
Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on constitutional grounds
without throwing out the whole code of evidence embodied in these Rules," is evidently wrong, not only for the reason just
stated, but because our contention that the defendant can not be deprived of his right to be confronted with and crossexamine the witness of the prosecution in s preliminary investigation under consideration would not, if upheld,
necessarily tear down said section. Our theory, is that said section 11 should be so construed as to be valid and effective,
that is, that if the defendant asks the court to recall the witness or witnesses for the prosecution to testify again in his
presence, and to allow the former to cross-examine the latter, the court or officer making the preliminary investigation is
under obligation to grant the request. But if the defendant does not so ask the court, he should be considered as waiving
his right to be confronted with and cross-examine the witness against him.
(2)

With respect to the second argument or reason, it is true that the preliminary investigation as provided for in the

General Orders, No. 58, as amended, is not an essential part of due process of law, because "due process of law" is not
iron clad in its meaning; it 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 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 'substantive

right' is incapable of exact definition ;" indeed "the difference is somewhat a question of degree," (Dexter vs. Edmonds, 89
F 487), is immaterial, because, as we have already said in refuting the majority's first reason, remedy and procedure are
two completely different things.
As above defined, substantive law is clearly differentiated from procedural law and practice. But even assuming arguendo
that it is difficult to draw the line in any particular case beyond which the power of the court over procedure can not pass
without touching upon the substantial right of the parties, what this Court should do in that case would be to abstain
from promulgating such rule of procedure which 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 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 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.
Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of the majority
reversed or modified in accordance with my dissenting opinion.
PERFECTO, J.:
We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration should be granted.
Footnotes
1.

Rights of defendant after arrest. After the arrest of the defendant and his delivery to the court, he shall be

informed of the complaint or information filed against him. He shall also be informed of the substance of the testimony
and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be
allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in
writing and subscribed by him.
2.

The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all

courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not
diminish, increase, or modify substantive rights. The existing laws on pleading, practice, and procedure are hereby
repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the
same. The National Assembly shall have the power to repeal, alter, or supplement the rules concerning pleading, practice,
and procedure, and the admission to the practice of law in the Philippines.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.