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, L-1336, 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, de nes
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 rst 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 identi ed 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
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 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 de nition. The difference is somewhat a
question of degree. It is di cult 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 x 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, led 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
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 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 scal 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 rst
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 de nes 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 :
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 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 scal 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 led 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 led 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 led 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
modi ed, 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
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 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 e caciously 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 su cient 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 nal 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 modi ed, 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
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 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 nally 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 nally 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 nal
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 nal 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, de nes 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.)

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 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
identi ed 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 disquali cation 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
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 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.
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 di cult 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 x 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 rst 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 de nition. The difference is somewhat a question of degree" . . . It is
di cult 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 x that boundary by general condition . . . "This
being so, it is inevitable that the Supreme Court in making rules should step on
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 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, de nes, 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, de ne 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 le
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 rst 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 super uities 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 a rm 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 rst
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 led 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
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 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 de ne,
create or regulate rights, and not procedural. "Rules of evidence are substantive rights
found in common law chie y 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 classi cation 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 cross-examine 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 o cer 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 ling an information, was
considered by this Court as su cient 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.

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 (3) The last reason or argument premised on the conclusion that "the
distinction between remedy and 'substantive right' is incapable of exact de nition ;"
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 rst
reason, remedy and procedure are two completely different things.
As above de ned, substantive law is clearly differentiated from procedural law
and practice. But even assuming arguendo that it is di cult 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 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 modi ed 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 led 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
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 are hereby repealed as statutes, and are declared Rules of Courts, subject to the power
of the Supreme Court to alter and modify the same. The National Assembly shall have
the power to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines.

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