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

LUCERO, Judge of First

Instance of Pampanga, respondent.

1948-10-20 | G.R. No. L-2068

DECISION

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, 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 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 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 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 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.

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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:

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 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 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.

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 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
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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 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 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
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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 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 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.

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 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, 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
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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, 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 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. 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
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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.

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 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
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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, 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 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 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 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 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 informed of the testimony and evidence
presented against him, and may be allowed to testify and present witnesses or evidence for him if he so
desires," are not rules of evidence; and in the second place, it is evident that most of the rules of
evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "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 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
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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 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 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 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 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 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,
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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.

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 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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