642

[No. L-2068. October 20, 1948]

DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G. LUCERO,
Judge of First Instance of Pampanga, respondent. 6 PHILIPPINE REPORTS
42 ANNOTATED
1. 1.CRIMINAL PROCEDURE; PRELIMINARY Bustos vs. Lucero
INVESTIGATION ; RIGHT OF CONFRONTATION NOT
APPLICABLE TO PRELIMINARY INVESTIGATION.—The
constitutional right of an accused to be confronted by the 1. and at the trial is unchanged. In the latter stage of the proceedings,
witnesses against him does not apply to preliminary hearings; the only stage where the guaranty of due process comes into
nor will the absence of a preliminary examination be an play, he still enjoys to the full extent the right to be confronted
infringement of his right to confront witnesses. As a matter of by and to cross-examine the witnesses against him. The degree of
fact, preliminary investigation may be done away with entirely importance of a preliminary investigation to an accused may be
without infringing the constitutional tight of an accused under gauged by the fact that this formality is frequently waived.
the due process clause to a fair trial. (Dequito and Saling
Buhay vs. Arellano, L-1336, May 28, 1948.)
1. 9.WORDS AND PHRASES; “REMEDY" AND “SUBSTANTIVE
RIGHT" EX-PLAINED AND DISTINGUISHED.—The
1. 2.CRIMINAL PROCEDURE, RULES OF; SECTION 11 OF distinction between “remedy” and “substantive right” is
RULES 108 AS AN ADJECTIVE LAW.—Section 11 of Rule incapable of exact definition. The difference is somewhat a
108, like its predecessors, is an adjective law and not a question of degree. It is difficult to draw a line in any particular
substantive law or substantive right. 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
1. 3.ID.; SUBSTANTIVE LAW AND ADJECTIVE LAW, condition.
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 1. 10.CONSTITUTIONAL LAW; SUPREME COURT; EXTENT
those rights which one enjoys under the legal system prior to the AND SCOPE OF THE POWER TO PROMULGATE RULES
disturbance of normal 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
641
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
VOL. 81, OCTOBER 20, limited and unsubstantial manner to his disadvantage. For the
court’s power is not merely to compile, revise or codify the rules
1948 41 of procedure existing at the time of the Constitution’s approval.
Bustos vs. Lucero 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
1. relations. (60 C.J., 980.) Substantive law is that part of the law and different rules without regard to their source and discarding
which creates, defines and regulates rights, or which regulates old ones.
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 ORIGINAL ACTION in the Supreme Court. Certiorari and
enforcing rights or obtains redress for their invasion. mandamus.
The facts are stated in the opinion of the court.
1. 4.ID.; ID.—As applied to criminal law, substantive law is that E.M. Banzali for petitioner.
which declares what acts are crimes and prescribes the Acting Provincial Fiscal Albino L. Figueroa and Assistant
punishment for committing them, as distinguished from the Provincial Fiscal Marcelo L. Mallari for respondent.
procedural law which provides or regulates the steps by which
one who commits a crime is to be punished. TUASON, J.:

1. 5.ID.; PRELIMINARY INVESTIGATION AS REMEDIAL IN The petitioner herein, an accused in a criminal case, filed a motion
NATURE.—Preliminary investigation is eminently and with the Court of First Instance of Pampanga after he had been bound
essentially remedial; it is the first step taken in a criminal
over to that court for trial, praying that the record of the case be
prosecution.
remanded to the justice of the peace court of Masantol, the court of
origin,
1. 6.ID. ; SECTION 11 OF RULE 108 AS PROCEDURAL.—As a 643
rule of evidence, section 11 of Rule 108 is also procedural.
Evidence-which is “the mode and manner of proving the VOL. 81, OCTOBER 20, 1948 643
competent facts and circumstances on which a party relies to Bustos vs. Lucero
establish the fact in dispute in judicial proceedings"-is identified
with and forms part of the method by which, in private law,
in order that the petitioner might cross-examine the complainant and
rights are enf orced and redress obtained, and, in criminal law, a her witnesses in connection with. their testimony, on the strength of
law transgressor is punished. Criminal procedure refers to which warrant was issued for the arrest of the accused. The motion
pleading, evidencea nd practice. (State vs. Capaci, 164 So., 419; was denied and that denial is the subject matter of this proceeding.
179 La., 462.) The entire rules of evidence have been According to the memorandum submitted by the petitioner’s
incorporated into the Rules of Court. We can not tear down attorney to the Court of First Instance in support of his motion, the
section 11 of Rule 108 on constitutional grounds without accused, assisted by counsel, appeared at the preliminary
throwing out the whole code of evidence embodied in these investigation. In that investigation, the justice of the peace informed
Rules.
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
1. 7.ID.; PRELIMINARY INVESTIGATION; CURTAILMENT OF moved that the complainant present her evidence so that she and her
ACCUSED’S RIGHT TO CROSS-EXAMINE WITNESSES, witnesses could be examined and crossexamined in the manner and
EFFECT OF.—The curtailment of the right of an accused in a
form provided by law.” The fiscal and the private prosecutor
preliminary investigation to crossexamine the witnesses who had
given evidence for his arrest is not of such importance as to objected, invoking section 11 of Rule 108, and the objection was
offend against the constitutional inhibition. Preliminary sustained. “In view thereof, the accused’s counsel announced his
investigation is not an. essential part of due process of law. It intention to renounce his right to present evidence,” and the justice of
may be suppressed entirely, and if this may be done, mere the peace forwarded the case to the court of first instance.
restriction of the privilege formerly enjoyed thereunder can not Leaving aside the question whether the accused, after renouncing
be held to fall within the constitutional prohibition. 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
1. 8.ID.; ID.; DENIAL OF ACCUSED TO CROSS-EXAMINE the opinion that the respondent judge did not act in excess of his
WITNESSES, DUE PROCESS OF LAW IS NOT INFRINGED jurisdiction or in abuse of discretion in refusing to grant the accused’s
BY.—While section 11 of Rule 108 denies to the defendant the motion to return the record for the purpose set out therein. In Dequito
right to cross-examine witnesses in a preliminary investigation, and Saling Buhay vs. Arellano, G.R. No. L-1336, recently
his right to present his -witnesses remains unaffected, and his
promulgated, in which case the respondent justice of the peace had
constitutional right to be informed of the charges against him
both at such investigation allowed the accused, over the complaint’s objection, to recall the
complainant and her witnesses at the preliminary investigation so that
they might be crossexamined, we sustained the justice of the peace’s 646
order. We said that section 11 of Rule 108 does not curtail the sound 64 PHILIPPINE REPORTS
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 6 ANNOTATED
right in the preliminary inves- Bustos vs. Lucero
644 procedure, and the provisions on preliminary investigation in the draft were
64 PHILIPPINE REPORTS 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
4 ANNOTATED the Supreme Court approved and adopted in toto the draft, except the part
referring to preliminary investigation which it modified, by suppressing said
Bustos vs. Lucero right and enacting, in its stead, the provisions of section 11 of Rule .1.08 in its
tigation, there is nothing in it or any other law restricting the present form. I prefer the old to the new procedure. But I can not subscribe to
authority, inherent in a court of justice, to pursue a course of action the majority decision, which is a judicial legislation and makes the exercise of
reasonably calculated to bring out the truth.” the right of a defendant to be confronted with and cross-examine the witnesses
But we made it clear that the “defendant can not, as a matter of against him, to depend entirely upon the whim or caprice of a judge or officer
right, compel the complainant and his witnesses to repeat in his conducting the preliminary investigation.”
presence what they had said at the preliminary examination before
the issuance of the order of arrest.” We called attention to the fact But now the question of the validity of said section 11, Rule 108, is
that “the constitutional right of an accused to be confronted by the squarely presented to this Court for decision, we have perforce to
witnesses against him does not apply to preliminary hearings; nor pass upon it.
will the absence of a preliminary examination be an infringement of Section 13, Article VIII, of the Constitution prescribes that “the
his right to confront witnesses.” As a matter of f act, preliminary Supreme Court shall have power to promulgate rules concerning
investigation may be done away with entirely without infringing the pleading, practice and procedure in all courts, but- said rules shall not
constitutional right of an accused under the due process clause to a diminish, increase or modify substantive rights.” The Constitution
fair trial. added the last part of the above-quoted constitutional precept in order
The foregoing decision was rendered by a divided court. The to emphasize that the Supreme Court is not empowered, and therefore
minority went farther than the majority and denied even any can not enact or promulgate substantive laws or rules, for it is
discretion on the part of the justice of the peace or judge holding the obvious that rules which diminish, increase or modify substantive
preliminary investigation to compel the complainant and his rights, are substantive and not adjective laws or rules concerning
witnesses to testify anew. pleading, practice and procedure.
Upon the foregoing considerations, the present petition is It does not require an elaborate argument to show that the right
dismissed with costs against the petitioner. granted by law upon a defendant to be confronted with and cross-
Moran, C.J., Parás, Pablo, Bengzon, and Briones, JJ., concur. examine the witnesses for the prosecution in preliminary
investigation as well as in the trial of the case is a substantive right. It
FERIA, J., dissenting: 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
I am sorry to dissent from the decision. person or veracity of his testimony may be efficaciously tested by a
The petitioner in the present case appeared at the preliminary cross-examination. It is a substantive right because by exercising it,
investigation before the Justice of the Peace of Masantol, Pampanga, an accused person may show, even if he has no evidence in his
and after being informed of the criminal charges against him and 647
asked if he pleaded guilty or not guilty, pleaded, not guilty. “Then the
counsel for the petitioner moved that the complainant present her VOL. 81, OCTOBER 20, 1948 647
evidence so that her witnesses could be examined and cross- Bustos vs. Lucero
examined in the manner and form provided by law.” The fiscal and favor, that the testimonies of the witnesses for the prosecution are not
the private prosecutor objected to petitioner’s motion invoking sufficient to indicate that there is a probability that a crime has been
section 11, Rule 108, and the objection committed and he is guilty thereof, and therefore the accused is
645 entitled to be released and not committed to prison, and thus avoid an
VOL. 81, OCTOBER 20, 1948 645 open and public accusation of crime, the trouble, expense, and
anxiety of a public trial, and the corresponding anxiety or moral
Bustos vs. Lucero
suffering which a criminal prosecution always entails.
was sustained. In view thereof, the accused refused to present his This right is not a constitutional but a statutory right granted by
evidence, and the case was forwarded to the Court of First Instance of law to an accused outside of the City of Manila because of the usual
Pampanga. delay in the final disposition of criminal cases in provinces. The law
The counsel for the accused petitioner filed a motion with the does not grant such right to a person charged with offenses triable by
Court of First Instance praying that the record of the case be the Court of First Instance in the City of Manila, because of the
remanded to the justice of the peace of Masantol, in order that the promptness, actual or presumptive, with which criminal cases are
petitioner might cross-examine the complainant and her witnesses in tried and disposed of in the Court of First Instance of said city. But
connection with their testimony. The motion was denied, and for that this right, though not a constitutional one, can not be modified,
reason the present special civil action of mandamus was instituted. abridged, or diminished by the Supreme Court, by virtue of the rule
It is. evident that the refusal or waiver of the petitioner to present making power conferred upon this Court by the Constitution.
his evidence during the investigation in the justice of the peace, was Since the provisions of section 11 of Rule 108 as construed by
not a waiver of his alleged right to be confronted with and cross- this Court in several cases, (in which the question of constitutionality
examine the witnesses for the prosecution, that is, of the preliminary or validity of said section had not been squarely raised) do away with
investigation provided for in General Order No. 58 and Act No. 194, the defendant’s righ tunder discussion, it follows that said section 11
to which he claims to be entitled, as shown by the fact that, as soon as diminishes the substantive right of the defendant in criminal case, and
the case was f orwarded to the Court of First Instance, counsel f or this Court has no power or authority to promulgate it and therefore is
the petitioner filed a motion with said court to remand the case to the null and void.
Justice of the Peace of Masantol ordering the latter to make said The fact that the majority of this Court has ruled in the above
preliminary investigation. His motion having been denied, the cited case of Dequito and Saling Buhay vs. Arellano, that the inferior
petitioner has filed the present action in which he squarely attacks the or justice of the peace courts have discretion to grant a defendant’s
validity of the provision of section 11, Rule 108, on the ground that it request to have the witnesses for the prosecution recalled to testify
deprives him of the right to be confronted with and cross-examine the again in the presence of the defendant and be cross-examined by the
witnesses for the prosecution, contrary to the provision of section 13, latter, does not validate said provision; because to make the exercise
Article VIII, of the Constitution. of an absolute right discretionary or dependent upon the will or
In the case of Dequito and Saling Buhay vs. Arellano, No. L- discretion of the court or officer making the preliminary
1336, we did not discuss and decide the question of validity or investigation, is evidently to diminish or modify it.
constitutionality of said section 11 in connection with section 1 of 648
Rule 108, because that question was not raised therein, and we
merely construed the provisions on preliminary investigation of Rule 64 PHILIPPINE REPORTS
108. In said case the writer of this dissenting opinion said: 8 ANNOTATED
“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 Bustos vs. Lucero
Rules of Court relating to criminal Petition is therefore granted.
PERFECTO, J., dissenting: 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.,
In our concurring and dissenting opinion in the case of Dequito and 1026.)
Saling Buhay vs. Arellano, No. L-1336, we said: As applied to criminal law, substantive law is that which declares
“In our opinion, section 11 of Rule 108 must be read, interpreted, and applied what acts are crimes and prescribes the punishment for committing
in a way that will not contravene the constitutional provision guaranteeing to them, as distinguished from the procedural law which provides or
all accused the right ‘to meet the witnesses face to face.’ (Section 1 [17], regulates the steps by which one who commits a crime is to be
Article III.) punished. (22 C.J. S., 49.) Preliminary investigation is eminently and
“Consequently, at the preliminary hearing contemplated by said essentially remedial; it is the first step taken in a criminal
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-
prosecution.
examine them. As a rule of evidence, section 11 of Rule 108 is also procedural.
“Although in such preliminary hearing the accused cannot finally be Evidence—which is “the mode and manner of proving the competent
convicted, he is liable to endure the ordeal eloquently depicted in the decision, facts and circumstances on which a party relies to establish the fact in
and the constitutional guarantee protects defendants, not only from the dispute in judicial proceedings"—is identified with and forms part of
jeopardy of being finally convicted and punished, but also from the physical, the method by which, in private law, rights are enforced and redress
mental and moral sufferings that may unjustly be visited upon him in any one obtained, and, in criminal law, a law transgressor is punished.
of the stages of the criminal process instituted against him. He must be Criminal procedure refers to pleading, evidence and practice.
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
(State vs. Capaci, 154 So., 419; 179 La., 462.) The entire rules of
the witnesses for the prosecution he can convince the court that the charges evidence have been incorporated into the Rules of Court. We can not
are groundless. There is no justice in compelling him to undergo the troubles tear down section 11 of Rule 108 on constitutional grounds without
of a final hearing if at the preliminary hearing the case can be terminated in throwing out the whole code of evidence embodied in these Rules.
his favor. Otherwise, the preliminary investigation or hearing will be an empty In Beazell vs. Ohio, 269 U.S., 167, 70 Law, ed., 216, the United
gesture that should not have a place within the framework of dignified and States Supreme Court said:
solemn judicial proceedings.” “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
On the strength of the above quoted opinion the petition should be evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 湥獴 L. ed., 648,
granted and so we vote. 650; Cummings vs. Missouri, 4 Wall. 277, 826, 18 L. ed., 356,
Petition dismissed. 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
RESOLUTION ON A MOTION FOR RECONSIDERATION
March 8, 1949 651
VOL. 81, OCTOBER 20, 1948 651
TUASON, J.;
Bustos vs. Lucero
This cause is now before us on a motion for reconsideration. 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
In the decision sought to be reconsidered, we said, citing Dequito otherwise affect him in such a harsh and arbitrary manner as to fall within the
and Saling Buhay vs. Arellano, G.R. No. L-1336: “The constitutional constitutional prohibition. Kring vs. Missouri, 107 U.S., 221, 27 L. ed., 507, 2
right of an accused to be confronted by Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U.S., 343, 42 L. ed., 1061, 18
649 Sup. Ct. Rep., 620. But it is now well settled that statutory changes in the
VOL. 81, MARCH 8, 1948 649 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
Bustos vs. Lucero disadvantage, are not prohibited. A statute which, after indictment, enlarges
the witnesses against him does not apply to preliminary hearings; nor the class of persons who may be witnesses at the trial, by removing the
will the absence of a preliminary examination be an infringement of disqualification of persons convicted of felony, is not an ex post facto
his right to confront witness. As a matter of fact, preliminary 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
investigation may be done away with entirely without infringing the indictment so as to render admissible against the accused evidence previously
constitutional right of an accused under the due process clause to a held inadmissible, Thompson vs. Missouri, 171 U.S., 380, 43 L. ed., 204, 18
fair trial.” We took this ruling to be ample enough to dispose the Sup. Ct. Rep., 922; or which changes the place of trial, Gut vs. Minnesota, 9
constitutional question pleaded in the application for certiorari. Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal
Heeding the wishes of the petitioner, we shall enlarge upon the appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U.S.,
subject. 377, 382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570."
It is contended that section 11 of Rule 108 of the Rules of
Court   infringes section 13, Article VIII, of the Constitution.  It is said
1 2 Tested by this standard, we do not believe that the curtailment of the
that the rule in question deals with substantive matters and impairs right of an accused in a preliminary investigation to cross-examine
substantive rights. the witnesses who had given evidence for his arrest is of such
We can not agree with this view. We are of the opinion that importance as to offend against the constitutional inhibition. As we
section 11 of Rule 108, like its predecessors, is an adjective law and have said in the beginning, preliminary investigation is not an
not a substantive law or substantive right. Substantive law creates essential part of due process of law. It may be suppressed entirely,
substantive rights and the two terms in this respect may be said to be and if this may be done, mere restriction of the privilege formerly
synonymous. Substantive rights is a term which includes those rights enjoyed thereunder can not be held to fall within the constitutional
which one enjoys under the legal system prior to the disturbance prohibition.
_________________ While section 11 of Rule 108 denies to the defendant the right to
cross-examine witnesses in a preliminary investigation, his right to
 Rights of defendant after arrest.—After the arrest of the defendant and his delivery
1
present his witnesses remains unaffected, and his constitutional right
to the court, he shall be informed of the complaint or information filed against him. He to be informed of the charges against him ‘both at such investigation
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 and at the trial is unchanged. In the latter stage of the proceedings,
be allowed to do so. The testimony of the witnesses need not be reduced to writing but the only stage where the guaranty of due process comes into play, he
that of the defendant shall be taken in writing and subscribed by him. still enjoys to the full extent the right to be confronted by and to
 The Supreme Court shall have the power to promulgate rules concerning pleading,
cross-examine the witnesses against him.
2

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 652
modify substantive rights. The existing laws on pleading, practice, and procedure are 65 PHILIPPINE REPORTS
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 2 ANNOTATED
power to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines. Bustos vs. Lucero
The degree of importance of a preliminary investigation to an
650 accused may be gauged by the fact that this formality is frequently
65 PHILIPPINE REPORTS waived.
0 ANNOTATED The distinction between “remedy” and “substantive right” is
incapable of exact definition. The difference is somewhat a question
Bustos vs. Lucero of degree. (Dexter vs. Edmands, 89 F., 467;
of normal relations. (60 C.J., 980.) Substantive law is that part of the Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular
law which creates, defines and regulates rights, or which regulates the case beyond which legislative power over remedy and procedure can
rights and duties which give rise to a cause of action; that part of the pass without touching upon the substantive rights of parties affected,
law which courts are established to administer; as opposed to as it is impossible to fix that boundary by general condition.
(State vs. Pavelick, 279 P., 11020 This being so, it is inevitable that and not because this Court is empowered to promulgate them as rules
the Supreme Court in making rules should step on substantive of court. And our old law of Criminal Procedure General Orders No.
rights, .and the Constitution must be presumed to tolerate if not to 58 grants the offended party the right to commence a criminal action
expect such incursion as does not affect the accused in a harsh and or file a complaint against the offender and to intervene in the
arbitrary manner or deprive him of a def ense, but operates only in a criminal prosecution against him, and grants the defendant in the
limited and unsubstantial manner to his disadvantage. For the Court’s Court of First Instance (except in the City of Manila) the right to bail,
power is not merely to compile, revise or codify the rules of and to a preliminary investigation including his rights during said
procedure existing at the time of the Constitution’s approval. This investigation, and the rights at the trial, which. are now reproduced or
power is “to promulgate rules concerning pleading, practice, and incorporated in Rules 106, 108, 110, and 111 of the Rules of Court,
procedure in all courts,” which is a power to adopt a general, except the rights now in question. And all these, and others not
complete and comprehensive system of procedure, adding new and necessary for us to mention, are obviously substantive rights.
different rules without regard to their source and discarding old ones. (1) As to the first argument, the premise “that prelimInary
The motion is denied. investigation is eminently and essentially remedial is not correct.
Moran, Undoubtedly the majority means to say procedural, in line with the
C.J., Parás, Pablo, Bengzon, Briones, and Montemayor, JJ., concur. conclusion in the resolution, because remedial law is one thing, and
procedural law is another. Obviously they are different branches of
FERIA, J., dissenting: the law. “Remedial statute” is “a statute providing a remedy for
655

I dissent. VOL. 81, OCTOBER 20, 1948 655

The motion for reconsideration must be granted. Bustos vs. Lucero
According to the resolution, the right of a defendant to be an injury as distinguished from a penal statute. A statute giving a
confronted with and cross-examine the witnesses for the prosecution party a mode of remedy for a wrong where he had none or a different
in a preliminary investigation granted by law or provided for in one before.).).). Remedial statutes are those which are made to supply
General Orders, No. 58, as amended, in force prior to the such def ects, and abridge such superfluities in the common law, as
promulgation of the Rules of Court, is not a substantive right but a arise either from the general imperfections of all human law, from
mere matter of procedure, and therefore this Court can suppress it in change of time and circumstances, from the mistakes and unadvised
section 11, Rule 108, of the Rules of Court, for the following reasons: determination of unlearned (or even learned) judges, or from any
653
other cause whatsoever.” (Black’s Law Dictionary, third edition, pp.
VOL. 81, OCTOBER 20, 1948 653 1525, 1526.)
Bustos vs. Lucero It is also not correct to affirm that section 11 of Rule 108 relating
First. Because “preliminary investigation is eminently and essentially to right of defendant after arrest “is a rule of evidence and therefore is
remedial; it is the first step taken in a criminal prosecution.” * * *. also procedural.” In the first place, the provisions of said section to
“As a rule of evidence, section 11 of Rule 108 is also procedural.” * * the effect that the defendant, after the arrest and his delivery to the
* “The entire rules of evidence have been incorporated into the Rules court has the right to be informed of the complaint or information
of Court.” And therefore “we can not tear down section 11 of Rule filed against him, and also to be inf ormed of the testimony and
108 on constitutional grounds without throwing out the whole Code evidence presented against him, and may be allowed to testify and
of evidence embodied in these rules.” present witnesses or evidence for him if he so desires,” are not rules
Secondly. Because, “preliminary investigation is not an essential of evidence; and in the second place, it is evident that most of the
part of due process of law. It may be suppressed entirely, and if this rules of evidence, if not all, are substantive laws that define, create or
may be done, mere restriction of the privilege formerly enjoyed regulate rights, and not procedural. “Rules of evidence are
thereunder can not be held to fall within the constitutional substantive rights found in common law chiefly and growing out of
prohibition.” reasoning, experience and common sense of lawyers and courts.”
Lastly. Because, “the distinction between remedy and (State vs. Pavelich, et al., 279 P., 1102.) “it is true that weighing of
‘substantive right’ is incapable of exact definition. The difference is evidence and the rules of practice with respect thereto form part of
somewhat a question of degree” * * * It is difficult to draw a line in the law of procedure, but the classification of proof fs is sometime
any particular case beyond which legislative power over remedy and determined by the substantive law.” (U. S. vs. Genato, 15 Phil., 170,
procedure can pass without touching upon the substantive rights of 176.) How can the law on judicial notice, conclusive as well as juris
parties affected, as it is impossible to fix that boundary by general tantum presumption, hearsay and best evidence rule, parol evidence
condition. * * * “This being so, it is inevitable that the Supreme rule, interpretation of documents, competency of a person to testify as
Court in making rules should step on substantive rights, and the a witness be considered procedural?
Constitution must be presumed to tolerate if not to expect such Theref ore, the argumentative conclusion that “we can not tear
incursion as does not affect the accused in a harsh and arbitrary down section 11 of Rule 108 on constitutional grounds without
manner or deprive him of a defense, but operates only in a limited throwing out the whole code of evidence embodied
656
and unsubstantial manner to his disadvantage.”
Before proceeding it is necessary to distinguish substantive law 65 PHILIPPINE REPORTS
from procedure, for the distinction is not always well understood. 6 ANNOTATED
Substantive law is that part of the law which creates, defines, and
regulates rights as opposed to objective or procedural law which Bustos vs. Lucero
prescribes the method of enforcing rights. What constitutes practice in these Rules,” is evidently wrong, not only for the reason just
and procedure in the law is the mode or proceeding by which a legal stated, but because our contention that the defendant can not be
right is enforced, “that which regulates the formal steps in an action deprived of his right to be confronted with and cross-examine the
or judicial proceedings; the course of procedure in courts; the form, witness of the prosecution in a preliminary investigation under
manner and order in which consideration would not, if upheld, necessarily tear down said
654 section. Our theory, is that said section 11 should be so construed as
65 PHILIPPINE REPORTS 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
4 ANNOTATED his presence, and to allow the former to crossexamine the latter, the
Bustos vs. Lucero court or officer making the preliminary investigation is under
proceedings have been, and are accustomed to be had; the form, obligation to grant the request. But if the defendant does not so ask
manner and order of carrying on and conducting suits or prosecutions the court, he should be considered as waiving his right to be
in the courts through their various stages according to the principles confronted with and cross-examine the witness against him.
of law and the rules laid down by the respective courts.” 31 Cyc. Law (2) With respect to the second argument or reason, it is true that
and Procedure, p. 1153; id., 32, section 405; Rapalje & Lawrence’s the preliminary investigation as provided for in the General Orders,
Law Dictionary; Anderson Law Dictionary; Bouvier’s Law No. 58, as amended, is not an essential part of due process of law,
Dictionary. because “due process of law” is not iron clad in its meaning; it does
Substantive rights may be created or granted either in the not necessarily mean a particular procedure. Due process of law
Constitution or in any branch of the law, civil, criminal, simply requires a procedure that fully ully protects the lif e, liberty
administrative or procedural law. In our old Code of Civil Procedure, and property. For that reason the investigation to be made by the City
Act No. 190, as amended, there are provisions which create, define Fiscal of the City of Manila under Act No. 612, now section 2465 of
and regulate substantive rights, and many of those provisions such as the Administrative Code, before filing an information, was
those relating to guardianship, adoption, evidence and many others considered by this Court as sufficient to satisfy the due process of law
are incorporated in the Rules of Court f or the sake of convenience 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
657
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 ‘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
658
65 PHILIPPINE REPORTS
8 ANNOTATED
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 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.
Motion denied.