Bustos vs. Lucero PDF

1/20/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 081
[No. L-2068. October 20, 1948]
DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G.

LUCERO, Judge of First Instance of Pampanga, respondent.
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 tight 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
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Bustos vs. Lucero
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.
www.central.com.ph/sfsreader/session/0000016fc342d970479ff1e2003600fb002c009e/t/?o=False 1/17
ID.; ID.—As applied to criminal law, substantive law is that which

4.
declares what acts are crimes and prescribes the punishment for
committing them, as distinguished from the procedural law which
provides or regulates the steps by which one who commits a crime
is to be punished.
5. ID.; PRELIMINARY INVESTIGATION AS REMEDIAL IN

NATURE.—Preliminary investigation is eminently and essentially
remedial; it is the first step taken in a criminal prosecution.
6. ID. ; SECTION 11 OF RULE 108 AS PROCEDURAL.—As a rule

of evidence, section 11 of Rule 108 is also procedural. Evidence-
which is “the mode and manner of proving the competent facts and
circumstances on which a party relies to establish the fact in dispute
in judicial proceedings"-is identified with and forms part of the
method by which, in private law, rights are enf orced and redress
obtained, and, in criminal law, a law transgressor is punished.
Criminal procedure refers to pleading, evidencea nd practice. (State
vs. Capaci, 164 So., 419; 179 La., 462.) The entire rules of
evidence have been incorporated into the Rules of Court. We can
not tear down section 11 of Rule 108 on constitutional grounds
without throwing out the whole code of evidence embodied in these
Rules.
7. ID.; PRELIMINARY INVESTIGATION; CURTAILMENT OF

ACCUSED’S RIGHT TO CROSS-EXAMINE WITNESSES,
EFFECT OF.—The curtailment of the right of an accused in a
preliminary investigation to crossexamine 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
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642 PHILIPPINE REPORTS ANNOTATED
Bustos vs. Lucero

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" EX-PLAINED AND DISTINGUISHED.—The
distinction between “remedy” and “substantive right” is incapable
of exact definition. The difference is somewhat a question of
degree. It is difficult to draw a line in any particular case beyond
which legislative power over remedy and procedure can pass
without touching upon the substantive rights of parties affected, as
it is impossible to fix that boundary by general condition.
10. CONSTITUTIONAL LAW; SUPREME COURT; EXTENT AND

SCOPE OF THE POWER TO PROMULGATE RULES OF
PLEADING AND PRACTICE.—That the Supreme Court in
making rules should step on substantive rights, and the Constitution
must be presumed to tolerate if not to expect such incursion as does
not affect the accused in a harsh and arbitrary manner or deprive
him of a def ense, 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.
ORIGINAL ACTION in the Supreme Court. Certiorari and

mandamus.
The facts are stated in the opinion of the court.
E.M. Banzali for petitioner.
Acting Provincial Fiscal Albino L. Figueroa and Assistant
Provincial Fiscal Marcelo L. Mallari for respondent.
TUASON, J.:
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,
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Bustos vs. Lucero
in order that the petitioner might cross-examine the complainant and

her witnesses in connection with. their testimony, on the strength of
which warrant was issued for the arrest of the accused. The motion
was denied and that denial is the subject matter of this proceeding.
According to the memorandum submitted by the petitioner’s
attorney to the Court 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 crossexamined in the manner and
form provided by law.” The fiscal and the private prosecutor
objected, invoking section 11 of Rule 108, and the objection was
sustained. “In view thereof, the accused’s counsel announced his
intention to renounce his right to present evidence,” and the justice
of the peace forwarded the case to the court of first instance.
Leaving aside the question whether the accused, after renouncing
his right to present evidence, and by reason of that waiver he was
committed to the corresponding court for trial, is estopped, we are of
the opinion that the respondent judge did not act in excess of his
jurisdiction or in abuse of discretion in refusing to grant the
accused’s motion to return the record for the purpose set out therein.
In Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336,
recently promulgated, in which case the respondent justice of the
peace had allowed the accused, over the complaint’s objection, to
recall the complainant and her witnesses at the preliminary
investigation so that they might be crossexamined, 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 inves-
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Bustos vs. Lucero
tigation, 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 f act, 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., Parás, Pablo, Bengzon, and Briones, JJ., concur.
FERIA, J., dissenting:
I am sorry to dissent from the decision.

The petitioner in the present case appeared at the preliminary
investigation before the Justice of the Peace of Masantol, Pampanga,
and after being informed of the criminal charges against him and
asked if he pleaded guilty or not guilty, pleaded, not guilty. “Then
the counsel for the petitioner moved that the complainant present her
evidence so that her witnesses could be examined and cross-
examined in the manner and form provided by law.” The fiscal and
the private prosecutor objected to petitioner’s motion invoking
section 11, Rule 108, and the objection
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Bustos vs. Lucero
was sustained. In view thereof, the accused refused to present his

evidence, and the case was forwarded to the Court of First Instance
of Pampanga.
The counsel for the accused petitioner filed a motion with the
Court of First Instance praying that the record of the case be
remanded to the justice of the peace of Masantol, in order that the
petitioner might cross-examine the complainant and her witnesses in
connection with their testimony. The motion was denied, and for that
reason the present special civil action of mandamus was instituted.
It is. evident that the refusal or waiver of the petitioner to present
his evidence during the investigation in the justice of the peace, was
not a waiver of his alleged right to be confronted with and cross-
examine the witnesses for the prosecution, that is, of the preliminary
investigation provided for in General Order No. 58 and Act No. 194,
to which he claims to be entitled, as shown by the fact that, as soon
as the case was f orwarded to the Court of First Instance, counsel f

or the petitioner filed a motion with said court to remand the case to
the Justice of the Peace of Masantol ordering the latter to make said
preliminary investigation. His motion having been denied, the
petitioner has filed the present action in which he squarely attacks
the validity of the provision of section 11, Rule 108, on the ground
that it deprives him of the right to be confronted with and cross-
examine the witnesses for the prosecution, contrary to the provision
of section 13, Article VIII, of the Constitution.
In the case of Dequito and Saling Buhay vs. Arellano, No. L-
1336, we did not discuss and decide the question of validity or
constitutionality of said section 11 in connection with section 1 of
Rule 108, because that question was not raised therein, and we
merely construed the provisions on preliminary investigation of Rule
108. In said case the writer of this dissenting opinion said:
“It may not be amiss to state that, modesty aside, the writer of this
dissenting opinion, then a practising attorney, was the one who prepared the
draft of the Rules of Court relating to criminal
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Bustos vs. Lucero
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 .1.08 in
its present form. I prefer the old to the new procedure. But I can not
subscribe to the majority decision, which is a judicial legislation and makes
the exercise of the right of a defendant to be confronted with and cross-
examine the witnesses against him, to depend entirely upon the whim or
caprice of a judge or officer conducting the preliminary investigation.”
But now the question of the validity of said section 11, Rule 108, is
squarely presented to this Court for decision, we have perforce to
pass upon it.
Section 13, Article VIII, of the Constitution prescribes that “the
Supreme Court shall have power to promulgate rules concerning
pleading, practice and procedure in all courts, but- said rules shall
not diminish, increase or modify substantive rights.” The
Constitution added the last part of the above-quoted constitutional
precept in order to emphasize that the Supreme Court is not
empowered, and therefore can not enact or promulgate substantive
laws or rules, for it is obvious that rules which diminish, increase or
modify substantive rights, are substantive and not adjective laws or

rules concerning pleading, practice and procedure.
It does not require an elaborate argument to show that the right
granted by law upon a defendant to be confronted with and cross-
examine the witnesses for the prosecution in preliminary
investigation as well as in the trial of the case is a substantive right.
It is based on human experience, according to which a person is not
prone to tell a lie against another in his presence, knowing fully well
that the latter may easily contradict him, and that the credibility of a
person or veracity of his testimony may be efficaciously tested by a
cross-examination. It is a substantive right because by exercising it,
an accused person may show, even if he has no evidence in his
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Bustos vs. Lucero
favor, that the testimonies of the witnesses for the prosecution are
not sufficient to indicate that there is a probability that a crime has
been committed and he is guilty thereof, and therefore the accused is
entitled to be released and not committed to prison, and thus avoid
an open and public accusation of crime, the trouble, expense, and
anxiety of a public trial, and the corresponding anxiety or moral
suffering which a criminal prosecution always entails.
This right is not a constitutional but a statutory right granted by
law to an accused outside of the City of Manila because of the usual
delay in the final disposition of criminal cases in provinces. The law
does not grant such right to a person charged with offenses triable by
the Court of First Instance in the City of Manila, because of the
promptness, actual or presumptive, with which criminal cases are
tried and disposed of in the Court of First Instance of said city. But
this right, though not a constitutional one, can not be modified,
abridged, or diminished by the Supreme Court, by virtue of the rule
making power conferred upon this Court by the Constitution.
Since the provisions of section 11 of Rule 108 as construed by
this Court in several cases, (in which the question of
constitutionality or validity of said section had not been squarely
raised) do away with the defendant’s righ tunder 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.
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Bustos vs. Lucero
Petition is therefore granted.
PERFECTO, J., dissenting:
In our concurring and dissenting opinion in the case of Dequito and

Saling Buhay vs. Arellano, No. L-1336, we said:
“In our opinion, section 11 of Rule 108 must be read, interpreted, and
applied in a way that will not contravene the constitutional provision
guaranteeing to all accused the right ‘to meet the witnesses face to face.’
(Section 1 [17], Article III.)
“Consequently, at the preliminary hearing contemplated by said
reglementary section, the defendant is entitled as a matter of fun.damental
right to hear the testimony of the witnesses for the prosecution and to cross-
examine them.
“Although in such preliminary hearing the accused cannot finally be
convicted, he is liable to endure the ordeal eloquently depicted in the
decision, and the constitutional guarantee protects defendants, not only from
the jeopardy of being finally convicted and punished, but also from the
physical, mental and moral sufferings that may unjustly be visited upon him
in any one of the stages of the criminal process instituted against him. He
must be afforded the opportunities to have the charges against him quashed,
not only at the final hearing, but also at the preliminary investigation, if by
confronting the witnesses for the prosecution he can convince the court that
the charges are groundless. There is no justice in compelling him to undergo
the troubles of a final hearing if at the preliminary hearing the case can be
terminated in his favor. Otherwise, the preliminary investigation or hearing
will be an empty gesture that should not have a place within the framework
of dignified and solemn judicial proceedings.”
On the strength of the above quoted opinion the petition should be

granted and so we vote.
Petition dismissed.
RESOLUTION ON A MOTION FOR RECONSIDERATION
March 8, 1949
TUASON, J.;
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
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Bustos vs. Lucero
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. 1
It is contended that section 11 of Rule 108 of the Rules
2
of Court
infringes section 13, Article VIII, of the Constitution. 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
_________________
1 Rights of defendant after arrest.—After the arrest of the defendant and his
delivery to the court, he shall be informed of the complaint or information filed
against him. He shall also be informed of the substance of the testimony and evidence
presented against him, and, if he desires to testify or to present witnesses or evidence
in his favor, he may be allowed to do so. The testimony of the witnesses need not be
reduced to writing but that of the defendant shall be taken in writing and subscribed
by him.
2 The Supreme Court shall have the power to promulgate rules concerning
pleading, practice, and procedure in all courts, and the admission to the practice of
law. Said rules shall be uniform for all courts of the same grade and shall not
diminish, increase, or modify substantive rights. The existing laws on pleading,
practice, and procedure are hereby repealed as statutes, and are declared Rules of
Courts, subject to the power of the Supreme Court to alter and modify the same. The
National Assembly shall have the power to repeal, alter, or supplement the rules
concerning pleading, practice, and procedure, and the admission to the practice of law
in the Philippines.
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Bustos vs. Lucero
of normal relations. (60 C.J., 980.) Substantive law is that part of the
law which creates, defines and regulates rights, or which regulates
the rights and duties which give rise to a cause of action; that part of
the law which courts are established to administer; as opposed to
adjective or remedial law, which prescribes the method of enforcing
rights or obtains redress for their invasion. (36 C.J., 27; 52 C.J. S.,
1026.)
As applied to criminal law, substantive law is that which declares
what acts are crimes and prescribes the punishment for committing
them, as distinguished from the procedural law which provides or
regulates the steps by which one who commits a crime is to be
punished. (22 C.J. S., 49.) Preliminary investigation is eminently
and essentially remedial; it is the first step taken in a criminal
prosecution.
As a rule of evidence, section 11 of Rule 108 is also procedural.
Evidence—which is “the mode and manner of proving the
competent facts and circumstances on which a party relies to
establish the fact in dispute in judicial proceedings"—is identified
with and forms part of the method by which, in private law, rights
are enforced and redress obtained, and, in criminal law, a law
transgressor is punished. Criminal procedure refers to pleading,
evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.)
The entire rules of evidence have been incorporated into the Rules
of Court. We can not tear down section 11 of Rule 108 on
constitutional grounds without throwing out the whole code of
evidence embodied in these Rules.
In Beazell vs. Ohio, 269 U.S., 167, 70 Law, ed., 216, the United
States Supreme Court said:
“Expressions are to be found in earlier judicial opinions to the effect that the
constitutional limitation may be transgressed by alterations in the rules of
evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 湥獴 L. ed.,
648, 650; Cummings vs. Missouri, 4 Wall. 277, 826, 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
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Bustos vs. Lucero
procedural changes which operate to deny to the accused a defense available

under the laws in force at the time of the commission of his offense, or
which otherwise affect him in such a harsh and arbitrary manner as to fall
within the constitutional prohibition. Kring vs. Missouri, 107 U.S., 221, 27
L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U.S., 343, 42 L.
ed., 1061, 18 Sup. Ct. Rep., 620. But it is now well settled that statutory
changes in the mode of trial or the rules of evidence, which do not deprive
the accused of a defense and which operate only in a limited and
unsubstantial manner to his disadvantage, are not prohibited. A statute
which, after indictment, enlarges the class of persons who may be witnesses
at the trial, by removing the disqualification of persons convicted of felony,
is not an ex post facto law. Hopt vs. Utah, 110 U.S., 575, 28 L. ed., 263, 4
Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes
the rules of evidence after the indictment so as to render admissible against
the accused evidence previously held inadmissible, Thompson vs. Missouri,
171 U.S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the
place of trial, Gut vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which
abolishes a court for hearing criminal appeals, creating a new one in its
stead. See Duncan vs. Missouri, 152 U.S., 377, 382, 38 L. ed., 485, 487, 14
Sup. Ct. Rep., 570."
Tested by this standard, we do not believe that the curtailment of the

right of an accused in a preliminary investigation to cross-examine
the witnesses who had given evidence for his arrest is of such
importance as to offend against the constitutional inhibition. As we
have said in the beginning, preliminary investigation is not an
essential part of due process of law. It may be suppressed entirely,
and if this may be done, mere restriction of the privilege formerly
enjoyed thereunder can not be held to fall within the constitutional
prohibition.
While section 11 of Rule 108 denies to the defendant the right to
cross-examine witnesses in a preliminary investigation, his right to
present his witnesses remains unaffected, and his constitutional right
to be informed of the charges against him ‘both at such investigation
and at the trial is unchanged. In the latter stage of the proceedings,
the only stage where the guaranty of due process comes into play, he
still enjoys to the full extent the right to be confronted by and to
cross-examine the witnesses against him.
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Bustos vs. Lucero
The degree of importance of a preliminary investigation to an

accused may be gauged by the fact that this formality is frequently
waived.
The distinction between “remedy” and “substantive right” is

incapable of exact definition. The difference is somewhat a question
of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.)
It is difficult to draw a line in any particular case beyond which
legislative power over remedy and procedure can pass without
touching upon the substantive rights of parties affected, as it is
impossible to fix that boundary by general condition. (State vs.
Pavelick, 279 P., 11020 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 def ense, 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., Parás, 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:
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First. Because “preliminary investigation is eminently and

essentially remedial; it is the first step taken in a criminal
prosecution.” * * *. “As a rule of evidence, section 11 of Rule 108 is
also procedural.” * * * “The entire rules of evidence have been
incorporated into the Rules of Court.” And therefore “we can not
tear down section 11 of Rule 108 on constitutional grounds without
throwing out the whole Code of evidence embodied in these rules.”
Secondly. Because, “preliminary investigation is not an essential

part of due process of law. It may be suppressed entirely, and if this
may be done, mere restriction of the privilege formerly enjoyed
thereunder can not be held to fall within the constitutional
prohibition.”
Lastly. Because, “the distinction between remedy and
‘substantive right’ is incapable of exact definition. The difference is
somewhat a question of degree” * * * It is difficult to draw a line in
any particular case beyond which legislative power over remedy and
procedure can pass without touching upon the substantive rights of
parties affected, as it is impossible to fix that boundary by general
condition. * * * “This being so, it is inevitable that the Supreme
Court in making rules should step on substantive rights, and the
Constitution must be presumed to tolerate if not to expect such
incursion as does not affect the accused in a harsh and arbitrary
manner or deprive him of a defense, but operates only in a limited
and unsubstantial manner to his disadvantage.”
Before proceeding it is necessary to distinguish substantive law
from procedure, for the distinction is not always well understood.
Substantive law is that part of the law which creates, defines, and
regulates rights as opposed to objective or procedural law which
prescribes the method of enforcing rights. What constitutes practice
and procedure in the law is the mode or proceeding by which a legal
right is enforced, “that which regulates the formal steps in an action
or judicial proceedings; the course of procedure in courts; the form,
manner and order in which
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Bustos vs. Lucero
proceedings have been, and are accustomed to be had; the form,

manner and order of carrying on and conducting suits or
prosecutions in the courts through their various stages according to
the principles of law and the rules laid down by the respective
courts.” 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405;
Rapalje & Lawrence’s Law Dictionary; Anderson Law Dictionary;
Bouvier’s Law Dictionary.
Substantive rights may be created or granted either in the
Constitution or in any branch of the law, civil, criminal,
administrative or procedural law. In our old Code of Civil
Procedure, Act No. 190, as amended, there are provisions which
create, define and regulate substantive rights, and many of those
provisions such as those relating to guardianship, adoption, evidence
and many others are incorporated in the Rules of Court f or the sake
of convenience and not because this Court is empowered to
promulgate them as rules of court. And our old law of Criminal
Procedure General Orders No. 58 grants the offended party the right
to commence a criminal action or file a complaint against the
offender and to intervene in the criminal prosecution against him,
and grants the defendant in the Court of First Instance (except in the
City of Manila) the right to bail, and to a preliminary investigation
including his rights during said investigation, and the rights at the
trial, which. are now reproduced or incorporated in Rules 106, 108,
110, and 111 of the Rules of Court, except the rights now in
question. And all these, and others not necessary for us to mention,
are obviously substantive rights.
(1) As to the first argument, the premise “that prelimInary
investigation is eminently and essentially remedial is not correct.
Undoubtedly the majority means to say procedural, in line with the
conclusion in the resolution, because remedial law is one thing, and
procedural law is another. Obviously they are different branches of
the law. “Remedial statute” is “a statute providing a remedy for
655
VOL. 81, OCTOBER 20, 1948 655

Bustos vs. Lucero
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 def ects, and abridge such superfluities in the
common law, as arise either from the general imperfections of all
human law, from change of time and circumstances, from the
mistakes and unadvised determination of unlearned (or even learned)
judges, or from any other cause whatsoever.” (Black’s Law
Dictionary, third edition, pp. 1525, 1526.)
It is also not correct to affirm that section 11 of Rule 108 relating
to right of defendant after arrest “is a rule of evidence and therefore
is also procedural.” In the first place, the provisions of said section
to the effect that the defendant, after the arrest and his delivery to the
court has the right to be informed of the complaint or information
filed against him, and also to be inf ormed of the testimony and
evidence presented against him, and may be allowed to testify and
present witnesses or evidence for him if he so desires,” are not rules
of evidence; and in the second place, it is evident that most of the
rules of evidence, if not all, are substantive laws that define, create
or regulate rights, and not procedural. “Rules of evidence are
substantive rights found in common law chiefly and growing out of
reasoning, experience and common sense of lawyers and courts.”
(State vs. Pavelich, et al., 279 P., 1102.) “it is true that weighing of
evidence and the rules of practice with respect thereto form part of
the law of procedure, but the classification of proof fs 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?
Theref ore, 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
656

Bustos vs. Lucero
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 a 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 crossexamine the latter,
the court or officer making the preliminary investigation is under
obligation to grant the request. But if the defendant does not so ask
the court, he should be considered as waiving his right to be
confronted with and cross-examine the witness against him.
(2) With respect to the second argument or reason, it is true that
the preliminary investigation as provided for in the General Orders,
No. 58, as amended, is not an essential part of due process of law,
because “due process of law” is not iron clad in its meaning; it does
not necessarily mean a particular procedure. Due process of law
simply requires a procedure that fully ully protects the lif e, liberty
and property. For that reason the investigation to be made by the
City Fiscal of the City of Manila under Act No. 612, now section
2465 of the Administrative Code, before filing an information, was
considered by this Court as sufficient to satisfy the due process of
law constitutional requirement (U. S. vs. Ocampo, 18 Phil., 1; U.S.
vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we
have already and correctly held that: “The law having explicitly
recognized and established that no person charged with the
commission of a crime shall be deprived of his liberty or subjected
to trial without prior preliminary investigation (provided for in
General Orders, No. 58, as amended) that shall show that there are
reasonable grounds to believe him guilty, there can be no doubt that
the accused who is deprived of his liberty, tried and sentenced
without the proper preliminary investigation having been made
657
VOL. 81, OCTOBER 20, 1948 657

Bustos vs. Lucero
in his regard, is convicted without due process of law,” (United

States vs. Banzuela, 31 Phil., 564).
The ruling in Beazell vs. Ohio, 269 U.S. 167, 70 Law. ed., 216,
quoted in the resolution, has no application to the present case, for
the question involved therein was the power of Congress to alter the
rules of evidence and procedure without violating the constitutional
precept that prohibits the passing of ex post facto law, while the
question herein involved is the power of the Supreme Court to
promulgate rules of pleading, practice and procedure, which
diminish the substantive right of a defendant, expressly prohibited
by the same provision of the Constitution that confers upon this
Court the power to promulgate said rules.
(3) The last reason or argument premised on the conclusion that
“the distinction between remedy and ‘substantive right’ is incapable
of exact definition;” indeed “the difference is somewhat a question
of degree,” (Dexter vs. Edmonds, 89 F 487), is immaterial, because,
as we have already said in refuting the majority’s first reason,
remedy and procedure are two completely different things.
As above defined, substantive law is clearly differentiated from
procedural law and practice. But even assuming arguendo that it is
difficult to draw the line in any particular case beyond which the
power of the court over procedure can not pass without touching
upon the substantial right of the parties, what this Court should do in
that case would be to abstain from promulgating such rule of
procedure which may increase, diminish or modify substantive right
in order to avoid violating the constitutional prohibition above
referred to. Because as this Supreme Court is not empowered by the
Constitution to legislate on or abrogate substantive rights, but only
to promulgate rules of pleading, practice and procedure which “shall
not diminish, increase or modify substantive rights,” this Court can
not step on them in making the rules, and the Constitution must be
presumed not to tolerate nor expect such
658

Teves vs. Sindiong
incursion as would affect the substantive rights of the accused in any

manner.
Besides, depriving an accused of his right to be confronted and
cross-examine the witness against him in a preliminary investigation
would affect the accused not in a limited and unsubstantial but in a
harsh and arbitrary manner. The testimony of a witness given in the
absence of the defendant and without an opportunity on the part of

the latter to cross-examine him is a hearsay evidence, and it should
not be admitted against the defendant in a preliminary investigation
that is granted to the latter as a protection against hasty, malicious
and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra).
Otherwise, an accused who is innocent and should not be arrested,
or if arrested should be released immediately a short time after his
arrest after the preliminary investigation, would have to be held for
trial and wait for a considerable period of time until the case is tried
and acquitted after trial by the Courts of First Instance in provinces
on account of the admission of such evidence in the preliminary
investigation, evidence not admissible at the trial.
Therefore, the motion for reconsideration is granted, and after the
necessary proceedings the decision of the majority reversed or
modified in accordance with my dissenting opinion.
PERFECTO, J.:
We dissent. Our opinion in the Dequito case still stands, The motion
for reconsideration should be granted.
Motion denied.
_________________
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1/20/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 081

[No. L-2068. October 20, 1948]

DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G.

1. CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION ;

2. CRIMINAL PROCEDURE, RULES OF; SECTION 11 OF

3. ID.; SUBSTANTIVE LAW AND ADJECTIVE LAW, DEFINED

VOL. 81, OCTOBER 20, 1948 641

Bustos vs. Lucero

ID.; ID.—As applied to criminal law, substantive law is that which

5. ID.; PRELIMINARY INVESTIGATION AS REMEDIAL IN

6. ID. ; SECTION 11 OF RULE 108 AS PROCEDURAL.—As a rule

7. ID.; PRELIMINARY INVESTIGATION; CURTAILMENT OF

8. ID.; ID.; DENIAL OF ACCUSED TO CROSS-EXAMINE

642 PHILIPPINE REPORTS ANNOTATED

Bustos vs. Lucero

and at the trial is unchanged. In the latter stage of the proceedings,

9. WORDS AND PHRASES; “REMEDY" AND “SUBSTANTIVE

10. CONSTITUTIONAL LAW; SUPREME COURT; EXTENT AND

ORIGINAL ACTION in the Supreme Court. Certiorari and

The petitioner herein, an accused in a criminal case, ﬁled a motion

VOL. 81, OCTOBER 20, 1948 643

Bustos vs. Lucero

in order that the petitioner might cross-examine the complainant and

644 PHILIPPINE REPORTS ANNOTATED

tigation, there is nothing in it or any other law restricting the

witnesses against him does not apply to preliminary hearings; nor

Moran, C.J., Parás, Pablo, Bengzon, and Briones, JJ., concur.

FERIA, J., dissenting:

I am sorry to dissent from the decision.

VOL. 81, OCTOBER 20, 1948 645

was sustained. In view thereof, the accused refused to present his

as the case was f orwarded to the Court of First Instance, counsel f

646 PHILIPPINE REPORTS ANNOTATED

procedure, and the provisions on preliminary investigation in the draft were

modify substantive rights, are substantive and not adjective laws or

VOL. 81, OCTOBER 20, 1948 647

because to make the exercise of an absolute right discretionary or

648 PHILIPPINE REPORTS ANNOTATED

Petition is therefore granted.

PERFECTO, J., dissenting:

In our concurring and dissenting opinion in the case of Dequito and

On the strength of the above quoted opinion the petition should be

RESOLUTION ON A MOTION FOR RECONSIDERATION

This cause is now before us on a motion for reconsideration.

VOL. 81, MARCH 8, 1948 649

the witnesses against him does not apply to preliminary hearings;

650 PHILIPPINE REPORTS ANNOTATED

VOL. 81, OCTOBER 20, 1948 651

procedural changes which operate to deny to the accused a defense available

Tested by this standard, we do not believe that the curtailment of the

652 PHILIPPINE REPORTS ANNOTATED

The degree of importance of a preliminary investigation to an

The distinction between “remedy” and “substantive right” is

Moran, C.J., Parás, Pablo, Bengzon, Briones, and

FERIA, J., dissenting:

VOL. 81, OCTOBER 20, 1948 653

First. Because “preliminary investigation is eminently and

Secondly. Because, “preliminary investigation is not an essential

654 PHILIPPINE REPORTS ANNOTATED

proceedings have been, and are accustomed to be had; the form,

VOL. 81, OCTOBER 20, 1948 655

an injury as distinguished from a penal statute. A statute giving a

656 PHILIPPINE REPORTS ANNOTATED