EN BANC

DOMINADOR B. BUSTOS, Petitioner,

vs. ANTONIO G. LUCERO, Judge CFI of Pampanga, Respondent.

G.R. No. L-2068   October 20, 1948

TOPIC: Substantive law vis a vis remedial law

Substantive law creates substantive rights. Substantive rights includes those rights,
which one enjoys under the legal system prior to the disturbance of normal relations.

Substantive law 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.

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. Preliminary investigation is eminently and essentially
remedial; it is the first step taken in a criminal prosecution

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 cross-examine the complainant and her witnesses in
connection with their testimony, on the strength of which warrant was issued
for the arrest of the accused. The motion was denied and that denial is the
subject matter of this proceeding. virtual law library

According 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 asked him if he
pleaded guilty or not guilty, upon which he entered the plea of not
guilty. "Then his counsel moved that the complainant present her
evidence so that she and her witnesses could be examined and
cross-examined in the manner and form provided by law." The fiscal and
the private prosecutor objected, invoking section 11 of rule 108, and the
objection was sustained. "In view thereof, the accused's counsel
announced his intention to renounce his right to present evidence," and
the justice of the peace forwarded the case to the court of first instance.
virtual law library

Leaving aside the question whether the accused, after renouncing his right
to present evidence, and by reason of that waiver he was committed to the
corresponding court for trial, is estopped, we are of the opinion that the
respondent judge did not act in excess of his jurisdiction or in abuse
of discretion in refusing to grant the accused's motion to return the record
for the purpose set out therein. In Dequito and Saling Buhay
vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the
respondent justice of the peace had allowed the accused, over the
complaint's objection, to recall the complainant and her witnesses at the
preliminary investigation so that they might be cross-examined, we
sustained the justice of the peace's order. We said that section 11 of Rule
108 does not curtail the sound discretion of the justice of the peace
on the matter. We said that "while section 11 of Rule 108 defines the
bounds of the defendant's right in the preliminary investigation, there is
nothing in it or any other law restricting the authority, inherent in a court of
justice, to pursue a course of action reasonably calculated to bring out the
truth."

But we made it clear that the "defendant can not, as a matter of right,
compel the complaint 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. law library

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. law library

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:chanrobles virtual law library

I am sorry to dissent from the

decision.chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner in the present case appeared at the preliminary investigation

before the Justice of the Peace of Masantol, Pampanga, and after being
informed of the criminal charges against him and asked if he pleaded guilty
or not guilty, pleaded not guilty. "Then the counsel for the petitioner moved
that the complainant present her evidence so that her witnesses could be
examined and cross-examined in the manner and form provided by law."
The fiscal and the private prosecutor objected to petitioner's motion invoking
section 11, Rule 108, and the objection was sustained. In view thereof, the
accused refused to present his evidence, and the case was forwarded to the
Court of First Instance of Pampanga.chanroblesvirtualawlibrary chanrobles
virtual law library

The counsel for the accused petitioner filed a motion with the Court of First
Instance praying that the record of the case be remanded to the justice of
the peace of Masantol, in order that the petitioner might cross-examine the
complainant and her witnesses in connection with their testimony. The
motion was denied, and for that reason the present special civil action
of mandamus was instituted.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-examine the
witnesses for the prosecution, that is, of the preliminary investigation
provided for in General Order No. 58 and Act No. 194, to which he claims to
be entitled, as shown by the fact that, as soon as the case was forwarded to
the Court of First Instance, counsel for the petitioner filed a motion with said
court to remand the case to the Justice of the Peace of Masantol ordering the
latter to make said preliminary investigation. His motion having been denied,
the petitioner has filed the present action in which he squarely attacks the
validity of the provision of section 11, Rule 108, on the ground that it
deprives him of the right to be confronted with and cross-examine the
witnesses for the prosecution, contrary to the provision of section 13, Article
VIII, of the Constitution.chanroblesvirtualawlibrary chanrobles virtual law
library
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 or Rule 108. In said case the writer of this dissenting opinion
said:

It may not be amiss to state that, modesty aside, the writer of this
dissenting opinion, then a practising attorney, was the one who prepared the
draft of the Rules of Court relating to criminal procedure, and the provisions
on preliminary investigation in the draft were the same as those of the old
law, which gave the defendant the right to be confronted with and to cross-
examine the witnesses for the prosecution. But the Supreme Court approved
and adopted in toto the draft, except the part referring to preliminary
investigation which it modified, by suppressing said right and enacting, in its
stead, the provisions of section 11 of Rule 108 in its present form. I prefer
the old to the new procedure. But I can not subscribe to the majority
decision, which is a judicial legislation and makes the exercise of the right of
a defendant to be confronted, with and cross-examine the witnesses against
him, to depend entirely upon the whim or caprice of a judge or officer
conducting the preliminary investigation.

But now the question of the validity of said section 11, Rule 108, is squarely
presented to this Court for decision, we have perforce to pass upon
it.chanroblesvirtualawlibrary chanrobles virtual law library

Section 13, Article VIII, of the Constitution prescribes that "the

Supreme Court shall have power to promulgate rules concerning
pleading, practice and procedure in all courts, but said rules shall
not diminish, increase or modify substantive rights." The constitution
added the last part of the above-quoted constitutional precept in order to
emphasize that the Supreme Court is not empowered, and therefore can not
enact or promulgate substantive laws or rules, for it is obvious that rules
which diminish, increase or modify substantive rights, are substantive and
not adjective laws or rules concerning pleading, practice and
procedure.chanroblesvirtualawlibrary chanrobles virtual law library

It does not require an elaborate arguments to show that the right granted by
law upon a defendant to be confronted with and cross-examine 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 experience,
according to which a person is not prone to tell a lie against another in his
presence, knowing fully well that the latter may easily contradict him, and
that the credibility of a person or veracity of his testimony may be
efficaciously tested by a cross-examination. It is substantive right because
by exercising it, an accused person may show, even if he has no evidence in
his favor, that the testimonies of the witnesses for the prosecution are not
sufficient to indicate that there is a probability that a crime has been
committed and he is guilty thereof, and therefore the accused is entitled to
be released and not committed to prison, and thus avoid an open and public
accusation of crime, the trouble, expense, and anxiety of a public trial, and
the corresponding anxiety or moral suffering which a criminal prosecution
always entails.chanroblesvirtualawlibrary chanrobles virtual law library

This right is not a constitutional but a statutory right granted by law to an

accused outside of the City of Manila because of the usual delay in the final
disposition of criminal cases in provinces. The law does not grant such right
to a person charged with offenses triable by the Court of First Instance in
the City of Manila, because of the promptness, actual or presumptive, with
which criminal cases are tried and disposed of in the Court of First Instance
of said city. But this right, though not a constitutional one, can not be
modified, abridged, or diminished by the Supreme Court, by virtue of the
rule making power conferred upon this Court by the
Constitution.chanroblesvirtualawlibrary chanrobles virtual law library

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.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 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.chanroblesvirtualawlibrary chanrobles virtual law library

Petition is therefore granted.

PERFECTO, J.,  dissenting:chanrobles virtual law library

In our concurring and dissenting opinion in the case of Dequito and Saling
Buhay vs. Arellano, No. L-1336, we said:

In our opinion, section 11 of Rule 108 must be read, interpreted, and applied
in a way that will not contravene the constitutional provision guaranteeing to
all accused the right "to meet the witnesses face to face." (Section 1 [17],
Article III.)chanrobles virtual law library

Consequently, 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 cross-examine
them.chanroblesvirtualawlibrary chanrobles virtual law library

Although in such preliminary hearing the accused cannot finally be

convicted, he is liable to endure the ordeal eloquently depicted in the
decision, and the constitutional guarantee protects defendants, not only
from the jeopardy of being finally convicted and punished, but also from the
physical, mental and moral sufferings that may unjustly be visited upon him
in any one of the stages of the criminal process instituted against him. He
must be afforded the opportunities to have the charges against him
quashed, not only at the final hearing, but also at the preliminary
investigation, if by confronting the witnesses for the prosecution he can
convince the court that the charges are groundless. There is no justice in
compelling him to undergo the troubles of a final hearing if at the
preliminary hearing the case can be terminated in his favor. Otherwise, the
preliminary investigation or hearing will be an empty gesture that should not
have a place within the framework of dignified and solemn judicial
proceedings.

On the strength of the above quoted opinion the opinion should be granted
and so we vote.chanroblesvirtualawlibrary chanrobles virtual law library

Petition dismissed.

RESOLUTION

March 8, 1949          

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, 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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

We can not agree with this view. We are of the opinion that section 11 of
Rule 108, like its predecessors, is an adjective law and not a substantive law
or substantive right. Substantive law creates substantive rights and the two
terms in this respect may be said to be synonymous. Substantive rights is a
term which includes those rights which one enjoys under the legal system
prior to the disturbance of normal relations. (60 C.J., 980.) Substantive
law is that part of the law which creates, defines and regulates
rights, or which regulates the rights and duties which give rise to a
cause of action; that part of the law which courts are established to
administer; as opposed to adjective or remedial law, which prescribes
the method of enforcing rights or obtains redress for their invasion.
(36 C. J., 27; 52 C. J. S., 1026.)chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence -

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. (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.chanroblesvirtualawlibrary chanrobles virtual law library

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 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 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. A statute which, after indictment, enlarges the class of persons
who may be witnesses at the trial, by removing the disqualification of
persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110
U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor
is a statute which changes the rules of evidence after the indictment so as to
render admissible against the accused evidence previously held inadmissible,
Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep.,
922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19
L. ed., 573; or which abolishes a court for hearing criminal appeals, creating
a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L.
ed., 485, 487, 14 sup. Ct. Rep., 570.

Tested by this standard, we do not believe that the curtailment of the right
of an accused in a preliminary investigation to cross-examine the witnesses
who had given evidence for his arrest is of such importance as to offend
against the constitutional inhibition. As we have said in the beginning,
preliminary investigation is not an essential part of due process of law. It
may be suppressed entirely, and if this may be done, mere restriction of the
privilege formerly enjoyed thereunder can not be held to fall within the
constitutional prohibition.chanroblesvirtualawlibrary chanrobles virtual law
library
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.chanroblesvirtualawlibrary chanrobles virtual law library

The distinction between "remedy" and "substantive right" is incapable of

exact definition. The difference is somewhat a question of degree.
(Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to
draw a line in any particular case beyond which legislative power over
remedy and procedure can pass without touching upon the substantive
rights of parties affected, as it is impossible to fix that boundary by general
condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable
that the Supreme Court in making rules should step on substantive rights,
and the Constitution must be presumed to tolerate if not to expect such
incursion as does not affect the accused in a harsh and arbitrary manner or
deprive him of a defense, but operates only in a limited and unsubstantial
manner to his disadvantage. For the Court's power is not merely to compile,
revise or codify the rules of procedure existing at the time of the
Constitution's approval. This power is "to promulgate rules concerning
pleading, practice, and procedure in all courts," which is a power to adopt a
general, complete and comprehensive system of procedure, adding new and
different rules without regard to their source and discarding old
ones.chanroblesvirtualawlibrary chanrobles virtual law library

The motion is denied.

Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur.