G.R. No.

L-2068 October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCRO, !"#$e o% &'r(t I)(t*)ce o%
+*,-*)$*, Respondent.
TUASON, J.: chanrobles virtual law library
The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of
Pampanga after he had been bound over to that court for trial, praying that the record of the case be
remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner
might crosse!amine the complainant and her witnesses in connection with their testimony, on the
strength of which warrant was issued for the arrest of the accused. The motion was denied and that
denial is the subject matter of this proceeding.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
"ccording to the memorandum submitted by the petitioner#s attorney to the Court of First Instance in
support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In
that investigation, the justice of the peace informed him of the charges and as$ed him if he pleaded
guilty or not guilty, upon which he entered the plea of not guilty. %Then his counsel moved that the
complainant present her evidence so that she and her witnesses could be e!amined and cross
e!amined in the manner and form provided by law.% The fiscal and the private prosecutor objected,
invo$ing section && of rule &'(, and the objection was sustained. %In view thereof, the accused#s
counsel announced his intention to renounce his right to present evidence,% and the justice of the
peace forwarded the case to the court of first instance.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
)eaving aside the *uestion 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 e!cess 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, +.,. -o. )&../, 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 crosse!amined,
we sustained the justice of the peace#s order. 0e said that section && of ,ule &'( does not curtail the
sound discretion of the justice of the peace on the matter. 0e said that %while section && of ,ule &'(
defines the bounds of the defendant#s right in the preliminary investigation, there is nothing in it or
any other law restricting the authority, inherent in a court of justice, to pursue a course of action
reasonably calculated to bring out the truth.% chanrobles virtual law library
1ut we made it clear that the %defendant can not, as a matter of right, compel the complaint and his
witnesses to repeat in his presence what they had said at the preliminary e!amination before the
issuance of the order of arrest.% 0e 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 e!amination be an infringement of his right to confront witnesses.% "s a
matter of fact, preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
The foregoing decision was rendered by a divided court. The minority went farther than the majority
and denied even any discretion on the part of the justice of the peace or judge holding the preliminary
investigation to compel the complainant and his witnesses to testify anew.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
2pon the foregoing considerations, the present petition is dismissed with costs against the petitioner.
Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., onur.



Se-*r*te O-')'o)(

&RIA, J., dissenting3 chanrobles virtual law library
I am sorry to dissent from the decision.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
The petitioner in the present case appeared at the preliminary investigation before the 4ustice of the
Peace of Masantol, Pampanga, and after being informed of the criminal charges against him and as$ed
if he pleaded guilty or not guilty, pleaded not guilty. %Then the counsel for the petitioner moved that
the complainant present her evidence so that her witnesses could be e!amined and crosse!amined in
the manner and form provided by law.% The fiscal and the private prosecutor objected to petitioner#s
motion invo$ing section &&, ,ule &'(, and the objection was sustained. In view thereof, the accused
refused to present his evidence, and the case was forwarded to the Court of First Instance of
Pampanga.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
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 crosse!amine the complainant and her witnesses in connection with their testimony. The
motion was denied, and for that reason the present special civil action of!anda!us was
instituted.chanroblesvirtualawlibrary chanrobles virtual law library
It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation
in the justice of the peace, was not a waiver of his alleged right to be confronted with and cross
e!amine the witnesses for the prosecution, that is, of the preliminary investigation provided for in
+eneral 5rder -o. 6( and "ct -o. &78, 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 4ustice of the Peace of Masantol ordering the latter to ma$e
said preliminary investigation. 9is motion having been denied, the petitioner has filed the present
action in which he s*uarely attac$s the validity of the provision of section &&, ,ule &'(, on the ground
that it deprives him of the right to be confronted with and crosse!amine the witnesses for the
prosecution, contrary to the provision of section &., "rticle :III, of the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Dequito and Saling Buhay vs. Arellano, -o. )&../, we did not discuss and decide the
*uestion of validity or constitutionality of said section && in connection with section & of ,ule &'(,
because that *uestion was not raised therein, and we merely construed the provisions on preliminary
investigation or ,ule &'(. In said case the writer of this dissenting opinion said3
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 ,ules 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 crosse!amine the witnesses
for the prosecution. 1ut the ;upreme Court approved and adopted in toto the draft, e!cept the part
referring to preliminary investigation which it modified, by suppressing said right and enacting, in its
stead, the provisions of section && of ,ule &'( in its present form. I prefer the old to the new
procedure. 1ut I can not subscribe to the majority decision, which is a judicial legislation and ma$es
the e!ercise of the right of a defendant to be confronted, with and crosse!amine the witnesses
against him, to depend entirely upon the whim or caprice of a judge or officer conducting the
preliminary investigation.
1ut now the *uestion of the validity of said section &&, ,ule &'(, is s*uarely presented to this Court
for decision, we have perforce to pass upon it.chanroblesvirtualawlibrary chanrobles virtual law library
;ection &., "rticle :III, of the Constitution prescribes that %the ;upreme 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
*uoted constitutional precept in order to emphasi<e that the ;upreme Court is not empowered, and
therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which
diminish, increase or modify substantive rights, are substantive and not adjective laws or rules
concerning pleading, practice and procedure.chanroblesvirtualawlibrary chanrobles virtual law library
It does not re*uire an elaborate arguments to show that the right granted by law upon a defendant to
be confronted with and crosse!amine the witnesses for the prosecuted in preliminary investigation as
well as in the trial of the case is a substantive right. It is based on human e!perience, according to
which a person is not prone to tell a lie against another in his presence, $nowing fully well that the
latter may easily contradict him, and that the credibility of a person or veracity of his testimony may
be efficaciously tested by a crosse!amination. It is substantive right because by e!ercising it, an
accused person may show, even if he has no evidence in his favor, that the testimonies of the
witnesses for the prosecution are not sufficient to indicate that there is a probability that a crime has
been committed and he is guilty thereof, and therefore the accused is entitled to be released and not
committed to prison, and thus avoid an open and public accusation of crime, the trouble, e!pense, and
an!iety of a public trial, and the corresponding an!iety or moral suffering which a criminal prosecution
always entails.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
This right is not a constitutional but a statutory right granted by law to an accused outside of the City
of Manila because of the usual delay in the final disposition of criminal cases in provinces. The law
does not grant such right to a person charged with offenses triable by the Court of First Instance in
the City of Manila, because of the promptness, actual or presumptive, with which criminal cases are
tried and disposed of in the Court of First Instance of said city. 1ut this right, though not a
constitutional one, can not be modified, abridged, or diminished by the ;upreme Court, by virtue of
the rule ma$ing power conferred upon this Court by the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
;ince the provisions of section && of ,ule &'( as construed by this Court in several cases, =in which
the *uestion of constitutionality or validity of said section had not been s*uarely raised> do away with
the defendant#s right under discussion, it follows that said section && diminishes the substantive right
of the defendant in criminal case, and this Court has no power or authority to promulgate it and
therefore is null and void.chanroblesvirtualawlibrary chanrobles virtual law library
The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling
Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion to grant a
defendant#s re*uest to have the witnesses for the prosecution recalled to testify again in the presence
of the defendant and be crosse!amined by the latter, does not validate said provision? because to
ma$e the e!ercise of an absolute right discretionary or dependent upon the will or discretion of the
court or officer ma$ing the preliminary investigation, is evidently to diminish or modify it.chanroblesvirtualawlibrary chanrobles virtual law library
Petition is therefore granted.
+R&CTO, J., dissenting3 chanrobles virtual law library
In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, -o. )
&../, we said3
In our opinion, section && of ,ule &'( 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.% =;ection & @&AB, "rticle III.> chanrobles virtual lawlibrary
Conse*uently, at the preliminary hearing contemplated by said reglementary section, the defendant is
entitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and
to crosse!amine them.chanroblesvirtualawlibrary chanrobles virtual law library
"lthough in such preliminary hearing the accused cannot finally be convicted, he is liable to endure the
ordeal elo*uently 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. 9e must be afforded the opportunities to have the charges against him
*uashed, 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. 5therwise, the preliminary investigation or hearing will be an
empty gesture that should not have a place within the framewor$ of dignified and solemn judicial
proceedings.
5n the strength of the above *uoted opinion the opinion should be granted and so we vote.chanroblesvirtualawlibrary chanrobles virtual law library
Petition dismissed.
, C ; 5 ) 2 T I 5 -
Marh ", #$%$
TUASON, J.: chanrobles virtual law library
This cause is now before us on a motion for reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library
In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, +.,.
-o. )&../3 %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 e!amination be an
infringement of his right to confront witness. "s 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.% 0e too$ this ruling to be ample enough to dispose the constitutional *uestion
pleaded in the application for ertiorari. 9eeding the wishes of the petitioner, we shall enlarge upon
the subject.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
It is contended that section && of ,ule &'( of the ,ules of Court
1
infringes section &., "rticle :III, of
the Constitution.
2
It is said that the rule in *uestion deals with substantive matters and impairs
substantive rights.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
0e can not agree with this view. 0e are of the opinion that section && of ,ule &'(, li$e its
predecessors, is an adjective law and not a substantive law or substantive right. ;ubstantive law
creates substantive rights and the two terms in this respect may be said to be synonymous.
;ubstantive rights is a term which includes those rights which one enjoys under the legal system prior
to the disturbance of normal relations. =/' C.4., 7('.> ;ubstantive law is that part of the law which
creates, defines and regulates rights, or which regulates the rights and duties which give rise to a
cause of action? that part of the law which courts are established to administer? as opposed to
adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their
invasion. =./ C. 4., DA? 6D C. 4. ;., &'D/.> chanrobles virtual law library
"s applied to criminal law, substantive law is that which declares what acts are crimes and prescribes
the punishment for committing them, as distinguished from the procedural law which provides or
regulates the steps by which one who commits a crime is to be punished. =DD C. 4. ;., 87.> Preliminary
investigation is eminently and essentially remedial? it is the first step ta$en in a criminal
prosecution.chanroblesvirtualawlibrary chanrobles virtual law library
"s a rule of evidence, section && of ,ule &'( is also procedural. Cvidence which is the %the mode and
manner of proving the competent facts and circumstances on which a party relies to establish the fact
in dispute in judicial proceedings% is identified with and forms part of the method by which, in private
law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished.
Criminal procedure refers to pleading, evidence and practice. =;tate vs. Capaci, &68 ;o., 8&7? &A7 )a.,
8/D.> the entire rules of evidence have been incorporated into the ,ules of Court. 0e can not tear
down section && of ,ule &'( on constitutional grounds without throwing out the whole code of
evidence embodied in these ,ules.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
In 1ea<ell vs. 5hio, D/7 2. ;., &/A, A' )aw. ed., D&/, the 2nited ;tates ;upreme Court said3
C!pressions 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. 1ull, . Eall.
.(/, .7', & ). ed., /8(, /6'? Cummings vs. Missouri, 8 0all. DAA, .D/, &( ). ed., .6/, ./8? Fring vs.
Missouri, &'A 2. ;. DD&, DD(, D.D, DA ). ed., 6'A, 6'(, 6&', D Ct. ,ep., 88.. "nd 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. Fring vs. Missouri, &'A 2. ;., DD&, DA
). ed., 6'A, D ;up. Ct. ,ep., 88.? Thompson vs. 2tah, &A' 2. ;., .8., 8D ). ed., &'/&, &( ;up. Ct.
,ep., /D'. 1ut it is not well settled that statutory changes in the mode of trial or the rules of evidence,
which do not deprive the accused of a defense and which operate only in a limited and unsubstantial
manner to his disadvantage, are not prohibited. " statute which, after indictment, enlarges the class
of persons who may be witnesses at the trial, by removing the dis*ualification of persons convicted of
felony, is not an e& post 'ato law. 9opt vs. 2tah, &&' 2. ;., 6A6, D( ). ed., D/., 8 ;up. Ct. ,ep., D'D,
8 "m. Crim. ,ep. 8&A. -or 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, &A& 2. ;., .(', 8. ). ed., D'8, &( ;up. Ct. ,ep., 7DD? or which changes the place of trial,
+ut. vs. Minnesota, 7 0all. .6, &7 ). ed., 6A.? or which abolishes a court for hearing criminal appeals,
creating a new one in its stead. See Euncan vs. Missouri, &6D 2. ;., .AA, .(D, .( ). ed., 8(6, 8(A, &8
sup. Ct. ,ep., 6A'.
Tested by this standard, we do not believe that the curtailment of the right of an accused in a
preliminary investigation to crosse!amine the witnesses who had given evidence for his arrest is of
such importance as to offend against the constitutional inhibition. "s we have said in the beginning,
preliminary investigation is not an essential part of due process of law. It may be suppressed entirely,
and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held
to fall within the constitutional prohibition.chanroblesvirtualawlibrary chanrobles virtual law library
0hile section && of ,ule &'( denies to the defendant the right to crosse!amine 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 e!tent the right to be confronted by and to crosse!amine
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 fre*uently waived.chanroblesvirtualawlibrary chanrobles virtual law library
The distinction between %remedy% and %substantive right% is incapable of e!act definition. The
difference is somewhat a *uestion of degree. =Ee!ter vs. Cdmands, (7 F., 8/A? 1ea<ell vs.
5hio, 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 fi! that boundary by general condition. =;tate vs. Pavelic$, DA7 P., &&'D.> This being
so, it is inevitable that the ;upreme Court in ma$ing rules should step on substantive rights, and the
Constitution must be presumed to tolerate if not to e!pect 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 e!isting at the time of the Constitution#s approval. This power is %to
promulgate rules concerning pleading, practice, and procedure in all courts,% which is a power to adopt
a general, complete and comprehensive system of procedure, adding new and different rules without
regard to their source and discarding old ones.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
The motion is denied.
Moran, C.J., Paras, Pablo, Bengzon, Briones, and Monte!ayor, JJ., onur.
G
&RIA, J., dissenting3 chanrobles virtual law library
I dissent.chanroblesvirtualawlibrary chanrobles virtual law library
The motion for reconsideration must be granted.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
"ccording to the resolution, the right of a defendant to be confronted with and crosse!amine the
witnesses for the prosecution in a preliminary investigation granted by law or provided for in +eneral
5rders, -o. 6(, as amended, in force prior to the promulgation of the ,ules of Court, is not a
substantive right but a mere matter of procedure, and therefore this Court can suppress it in section
&&, ,ule &'(, of the ,ules of Court, for the following reasons3 chanrobles virtual lawlibrary
First. 1ecause %preliminary investigation is eminently and essentially remedial? it is the first step ta$en
in a criminal prosecution.% . . . %"s a rule of evidence, section && of ,ule &'( is also procedural.% . . .
%The entire rules of evidence have been incorporated into the ,ules of Court.% "nd therefore %we can
not tear down section && of ,ule &'( on constitutional grounds without throwing out the whole Code
of evidence embodied in these rules.% chanrobles virtual law library
;econdly. 1ecause, %preliminary investigation is not an essential part of due process of law. It may be
suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed
thereunder can not be held to fall within the constitutional prohibition.% chanrobles virtual law library
)astly. 1ecause, %the distinction between remedy and #substantive right# is incapable of e!act
definition. The difference is somewhat a *uestion of degree% . . . It is difficult to draw a line in any
particular case beyond which legislative power over remedy and procedure can pass without touching
upon the substantive rights of parties affected, as it is impossible to fi! that boundary by general
condition. . . . %This being so, it is inevitable that the ;upreme Court in ma$ing rules should step on
substantive rights, and the Constitution must be presumed to tolerate if not to e!pect such incursion
as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but
operates only in a limited and unsubstantial manner to his disadvantage.% chanrobles virtual law library
1efore proceeding it is necessary to distinguish substantive law from procedure, for the distinction is
not always well understood. ;ubstantive 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. 0hat constitutes practice and procedure in the law is the mode or proceeding by which a legal
right is enforced, %that which regulates the formal steps in an action or judicial proceedings? the
course of procedure in courts? the form, manner and order in which proceedings have been, and are
accustomed to be had? the form, manner and order of carrying on and conducting suits or
prosecutions in the courts through their various sages according to the principles of law and the rules
laid down by the respective courts.% .& Cyc. )aw and Procedure, p. &&6.? id., .D, section 8'6? ,apalje
H )awrence#s )aw Eictionary? "nderson )aw Eictionary? 1ouvier#s )aw Eictionary.chanroblesvirtualawlibrary chanrobles virtual law library
;ubstantive 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, "ct -o. &7', 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 ,ules of Court for the sa$e of convenience and not because this Court is
empowered to promulgate them as rules of court. "nd our old law of Criminal Procedure +eneral
5rders -o. 6( grants the offended party the right to commence a criminal action or file a complaint
against the offender and to intervene in the criminal prosecution against him, and grants the
defendant in the Court of First Instance =e!cept in the City of Manila> the right to bail, and to a
preliminary investigation including his rights during said investigation, and the rights at the trial, which
are now reproduced or incorporated in ,ules &'/, &'(, &&', and &&& of the ,ules of Court, e!cept the
rights now in *uestion. "nd all these, and others not necessary for us to mention, are obviously
substantive rights.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
=&> "s to the first argument, the premise %the preliminary investigation is eminently and essentially
remedial is not correct. 2ndoubtedly the majority means to say procedural, in line with the conclusion
in the resolution, because remedial law is one thing, and procedural law is another. 5bviously they are
different branches of the law. %,emedial statute% is %a statute providing a remedy for an injury as
distinguished from a penal statute. " statute giving a party a mode of remedy for a wrong where he
had none or a different one before. . . . ,emedial statutes are those which are made to supply such
defects, and abridge such superfluities in the common law, as arise either from the general
imperfections of all human law, from change of time and circumstances, from the mista$es and
unadvised determination of unlearned =or even learned> judges, or from any other cause whatsoever.%
=1lac$#s )aw Eictionary, third edition, pp. &6D6, &6D/.> chanrobles virtual law library
It is also not correct to affirm that section && of ,ule &'( 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. %,ules of evidence are substantive rights found in common law chiefly and growing out of
reasoning, e!perience and common sense of lawyers and courts.% =;tate vs. Pavelich, et al., DA7 P.,
&&'D.> %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.%
=2. ;.vs. +enato, &6 Phil., &A', &A/.> 9ow can the law on judicial notice, conclusive as well as (uris
tantu! presumption, hearsay and best evidence rule, parol evidence rule, interpretation of
documents, competency of a person to testify as a witness be considered proceduralI chanrobles virtual law library
Therefore, the argumentative conclusion that %we can not tear down section && of ,ule &'( on
constitutional grounds without throwing out the whole code of evidence embodied in these ,ules,% 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 crosse!amine the witness of the
prosecution is a preliminary investigation under consideration would not, if upheld, necessarily tear
down said section. 5ur theory, is that said section && should be so construed as to be valid and
effective, that is, that if the defendant as$s the court to recall the witness or witnesses for the
prosecution to testify again in his presence, and to allow the former to crosse!amine the latter, the
court or officer ma$ing the preliminary investigation is under obligation to grant the re*uest. 1ut if the
defendant does not so as$ the court, he should be considered as waiving his right to be confronted
with and crosse!amine the witness against him.chanroblesvirtualawlibrary chanrobles virtual law library
=D> 0ith respect to the second argument or reason, it is true that the preliminary investigation as
provided for in the +eneral 5rders, -o. 6(, as amended, is not an essential part of due process of law,
because %due process of law% is not iron clad in its meaning? its does not necessarily mean a particular
procedure. Eue process of law simply re*uires 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
"ct -o. /&D, now section D8/6 of the "dministrative Code, before filing an information, was
considered by this Court as sufficient to satisfy the due process of law constitutional re*uirement =2.
;. vs. 5campo, &( Phil., &? 2. ;. vs. +rant and Fennedy, &( Phil., &DD>. 1ut it is also true that we have
already and correctly held that3 %The law having e!plicitly recogni<ed 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 +eneral orders, -o. 6(, 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 onvited )ithout the proess o' la),% =2nited ;tates vs. 1an<uela, .& Phil.,
6/8>.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
The ruling in 1ea<ell vs. 5hio, D/7 2. ;. &/A, A' )aw. ed., D&/, *uoted in the resolution, has no
application to the present case, for the *uestion 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 e& post 'ato la), while the *uestion herein involved is the power of the ;upreme Court to
promulgate rules of pleading, practice and procedure, which diminish the substantive right of a
defendant, e!pressly prohibited by the same provision of the Constitution that confers upon this Court
the power to promulgate said rules.chanroblesvirtualawlibrary chanrobles virtual law library
=.> The last reason or argument premised on the conclusion that %the distinction between remedy and
#substantive right# is incapable of e!act definition?% indeed %the difference is somewhat a *uestion of
degree,% =Ee!ter vs. Cdmonds, (7 F 8(A>, is immaterial, because, as we have already said in refuting
the majority#s first reason, remedy and procedure are two completely different things.chanroblesvirtualawlibrary chanrobles virtual law library
"s above defined, substantive law is clearly differentiated from procedural law and practice. 1ut even
assuming arguendo that it is difficult to draw the line in any partiular ase beyond which the power of
the court over procedure can not pass without touching upon the substantial right of the parties, what
this Court should do in that case would be to abstain from promulgating such rule of procedure which
many increase, diminish or modify substantive right in order to avoid violating the constitutional
prohibition above referred to. 1ecause as this ;upreme 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 ma$ing the rules, and the Constitution must be presumed not to tolerate nor e!pect such
incursion as would affect the substantive rights of the accused in any manner.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
1esides, depriving an accused of his right to be confronted and crosse!amine 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 crosse!amine 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 =2. ;. vs. +rant and
Fennedy, supra>. 5therwise, 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 ac*uitted
after trial by the Courts of First Instance in provinces on account of the admission of such evidence in
the preliminary investigation, evidence not admissible at the trial.chanroblesvirtualawlibrary chanrobles virtual lawlibrary
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.
+R&CTO, J.: chanrobles virtual law library
0e dissent. 5ur opinion in the Ee*uito case still stands. The motion for reconsideration should be
granted.

)#)ote(.
TUASON, !..

1
Rights o' de'endant a'ter arrest. "fter the arrest of the defendant and his delivery to the
court, he shall be informed of the complaint or information filed against him. 9e 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 ta$en in writing and
subscribed by him.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

2
The ;upreme Court shall have the power to promulgate rules concerning pleading, practice,
and procedure in all courts, and the admission to the practice of law. ;aid rules shall be uniform for all
courts of the same grade and shall not diminish, increase, or modify substantive rights. The e!isting
laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared ,ules of
Courts, subject to the power of the ;upreme Court to alter and modify the same. The -ational
"ssembly 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.