Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-2068             October 20, 1948

DOMINADOR B. BUSTOS, petitioner, vs.ANTONIO G. LUCERO, Judge of First Instance of Pampanga, respondent.

E. M. Banzali for petitioner.Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari for respondent.

 

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 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.

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.

The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant and his witnesses to testify anew.

Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner.

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

 

 

 

Separate Opinions

 

FERIA, J., dissenting:

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 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.

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 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.

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 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 her 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 opinion should be granted and so we vote.

Petition dismissed.

R E S O L U T I O N

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 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 "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 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.

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 can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (Statevs. 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 procedure in courts; the form, manner and order in which proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various sages according to the principles of law and the rules laid down by the respective courts." 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 "the 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 is 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 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; its 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 the 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 assumingarguendo 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 many increase, diminish or modify substantive right in order to avoid violating the constitutional prohibition above referred to. Because as this Supreme Court is not empowered by the Constitution to legislate on or abrogate substantive rights, but only to promulgate rules of pleading, practice and procedure which "shall not diminish, increase or modify substantive rights," this Court can not step on them in making the rules, and the Constitution must be presumed not to tolerate nor expect such incursion as would affect the substantive rights of the accused in any manner.

Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and arbitrary manner. The testimony of a witness given in the absence of the defendant and without an opportunity on the part of the latter to cross-examine him is a hearsay evidence, and it should not be admitted against the defendant in a preliminary investigation that is granted to the latter as a protection against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused who is innocent and should not be arrested, or if arrested should be released immediately a short time after his arrest after the preliminary investigation, would have to be held for trial and wait for a considerable period of time until the case is tried and acquitted after trial by the Courts of First Instance in provinces on account of the admission of such evidence in the preliminary investigation, evidence not admissible at the trial.

Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of the majority reversed or 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.

 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-6120             June 30, 1953

CIPRIANO P. PRIMICIAS, petitioner, vs.FELICISIMO OCAMPO, as Judge-at-large presiding over Branch C of the Court of First Instance of Manila and EUGENIO ANGELES, as City Fiscal of Manila, representing the PEOPLE OF THE PHILIPPINES,respondents.

Claro M. Recto for petitioner.City Fiscal Eugenio Angeles for respondents.

BAUTISTA ANGELO, J.:

This is a petition which seeks to prohibit respondent Judge from proceeding with the trial of two criminal cases which were then pending against petitioner without the assistance of assessors in accordance with the provisions of section 49 of Republic Act No. 409 in relation to section 154 of Act No. 190, and as an auxiliary remedy, to have a writ of preliminary injunction issued so that the trial may be held pending until further orders of this court.

This petition was originally filed with the Court of Appeals, but was later certified to this court on the ground that the main basis of the petition is section 49 of Republic Act No. 409, otherwise known as Revised Charter of the City of Manila, approved on June 18, 1949, and respondents assail the constitutionality of said section in that it contravenes the constitutional provision that the rules of court "shall be uniform for all courts of the same grade . . . .(Section 13, Article VIII of the Constitution.).

Petitioner was charged before the Court of First Instance of Manila with two statutory offenses, namely, (1) with a violation of Commonwealth Act No. 606, which was docketed as criminal case No. 18374, in that he knowingly chartered a vessel of Philippine registry to an alien without the approval of the President of the Philippines and (2) with a violation of section 129 in relation to section 2713 of the Revised Administrative Code, which was docketed as Criminal Case No. 18375, in that he failed to submit to the Collector of Customs the manifests and certain authenticated documents for the vessel "Antarctic" and failed to obtain the necessary clearance from the Bureau of Customs prior to the departure of said vessel for a foreign port.

On April 23, 1952, before the trial of said criminal cases, petitioner filed a motion praying that assessors be appointed to assist the court in considering the questions of fact involved in said cases as authorized by section 49 of Republic Act No. 409, otherwise known as Revised Charter of the City of Manila, which provides that "the aid of assessors in the trial of any civil or criminal action in the Municipal Court, or the Court of First Instance, within the City, may be invoked in the manner

provided in the Code of Civil Procedure." This motion was opposed by the City Fiscal who appeared for the People of the Philippines.

On April 28, 1952, the court issued an order denying the motion holding in effect that with the promulgation of the Rules of Court by the Supreme Court, which became effective on July 1, 1940, all rules concerning pleading, practice and procedure in all courts of the Philippines previously existing were not only superseded but expressly repealed, that the Supreme Court, having been vested with the rule-making power, expressly omitted the portions of the Code of Civil Procedure regarding assessors in said Rules of Court, and that the reference to said statute by section 49 of Republic Act No. 409 on the provisions regarding assessors should be deemed as a mere surplusage. Believing that this order is erroneous, petitioner now comes to this court imputing abuse of discretion to the respondent Judge.

The issues now posed by petitioner are:.

I. The right of the petitioner to a trial with the aid of assessors is an absolute substantive right, and the duty of the court to provide assessors is mandatory.

II. The right to trial with the aid of assessors, being a substantive right, cannot be impaired by this court in the exercise of its rule-making power.

III. Section 154 of the Code of Civil Procedure and Section 2477 of the Old Charter of Manila, creating the right to trial with the aid of assessors, are substantive law and were not repealed by Rules of Court.

IV. Granting without admitting that the provisions on assessors of the Code of Civil Procedure and the old Charter of Manila were impliedly repealed, nevertheless, the same provisions were later reenacted by reference in section 49 of the Revised Charter of Manila, which is now the source of the right to trial with the aid of assessors and which refers to the Code of Civil Procedure merely to indicate the procedure for appointing assessors.

V. Section 49 of the Revised Charter of Manila is not invalid class legislation and does not violate the constitutional provision that the rules of pleading, practice and procedure 'shall be uniform for all the courts of the same grade.

A brief summary of the historical background of the legislation regarding trial with the aid of assessors in the Philippines may be of help in the determination of the issues posed by petitioner. The first provision which allowed trial with the aid of assessors in civil cases in inferior courts and Courts of First Instance is contained in Act No. 190 of the Philippine Commission, otherwise known as the Code of Civil Procedure, which took effect on October 1, 1901 (Sections 58-62; 154-161). Almost simultaneously, or on October 17, 1901, the trial with the aid of assessors both in civil and criminal cases was allowed in the Manila courts upon the enactment of Act No. 267, amending Act No. 183, the original Charter of Manila. In 1914, the trial by assessors was allowed in criminal cases in the courts of first instance in the provinces with the enactment of Act No. 2369. And in 1915, Act No. 2520 was passed extending the same trial by assessors to the courts of first instance and justice of the peace courts in the Department of Mindanao and Sulu.

In connection with the use of assessors in Manila, section 44 of Act No. 183, the original Charter of Manila, as amended by section 13 of Act No. 267, was reenacted as section 2449 of the Administrative Code 1916, Act No. 2657. Section 2449 of the Administrative Code of 1916 became section 2477 of Act No. 2711, otherwise known as the Revised Administrative Code of 1917. And section 2477 in turn became section 49 of the Republic Act No. 409, which is the present Charter of

the City of Manila. This section 49 is the law now invoked by petitioner in support of his claim to a trial with the aid of assessors in the two criminal cases now pending against him. Its pertinent provisions are quoted hereunder for ready reference:.

SEC. 49. Assessors in the courts in the city. — The aid of assessors in the trial of any civil or criminal action in the municipal court, or the Court of First Instance, within the city, may be invoked in the manner provided in the Code of Civil Procedure. It shall be the duty of the Municipal Board to prepare one list of the names of twenty-five residents of the City best fitted by education, natural ability and reputation for probity to sit as assessors in the trial of actions in the municipal court and a like list of persons to sit as assessors in the trial of the action in the Court of First Instance. The Board may at any time strike any name from the list so prepared, by reason of the death, permanent disability, or unfitness of the person named; and in case names are so stricken out, other names shall be added in their place, to be selected as in this section provided. Parties desiring to avail themselves of the use of assessors in the municipal or Court of First Instance shall proceed as provided for by law or rules of court; and the method of summoning assessors, enforcing their attendance, excusing them from attendance, their compensation, oath duties and effect of dissent from the opinion of the judges shall be as provided in those laws or rules.

A careful analysis of the above provisions is interesting. Their most salient features are: The aid of assessors in the trial of any civil or criminal action in the Municipal Court or the Court of First Instance may be invoked in the manner provided in the Code of Civil Procedure. The parties desiring to avail themselves of the use of assessors "shall proceed as provided for by law or rules of court", and "the method of summoning assessors, enforcing their attendance, excusing them from attendance, their compensation, oath, duties, and effect of the dissent from the opinion of the judge shall be as provided in those laws or rules." If we are to be guided merely by these provisions, the right to trial with the aid of assessor would seem to be beyond dispute. These provisions are simple and clear and appear to be mandatory. But where the difficulty arises is in their relation or bearing on the directive of the Constitution which provides that "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." Pursuant to this rule-making power, the Supreme Court promulgated the present Rules of Court, which became effective on July 1, 1940, but because it failed to incorporate therein the provisions of the Code of Civil Procedure on assessors, respondents now contend that the right to trial with the aid of assessors, with all its concomitant provisions, cannot now be invoked because, being procedural in nature, the same must be deemed to have been impliedly eliminated.

This claim would be correct if we were to hold that the right to trial with the aid of assessors is not substantive but procedural or adjective in nature. If it were merely procedural, not having been incorporated in the Rules of Court, the logical conclusion is that the rule- making power has deemed wise to eliminate it. But no such presumption, nor conclusion, can be drawn for the reason that the right to a trial by assessors is substantive in the sense that it must created and defined by express enactment as opposed to a mere remedy devised to enforce such right or obtain redress therefor. "Rules of procedure should be distinguished from substantive law. A substantive law creates, defines or regulates rights concerning life, liberty or property, or the powers of agencies or instrumentalities for the administration of public affairs, whereas rules of procedure are provisions prescribing the method by which substantive rights may be enforced in courts of justice." (Moran, Comments on the Rules of Court, Vol. I, 1952 ed., p.4.)

In Bustos vs. Lucero,* (46 Off. Gaz., January Supp., pp. 445, 448), this Court cited with approval the following definitions of substantive law:

Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights in 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 right 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 obtain redress for their invasions (36 C.J. 27; 52 C.J.S. 1026).

The trial with the aid of assessors as granted by section 154 of the Code of Civil Procedure and section 2477 of the old Charter of Manila are parts of substantive law and as such are not embraced by the rule-making power of the Supreme Court. This is so because in said section 154 this matter is referred to as a right given by law to a party litigant. Section 2477 of the Administrative Code of 1917 is couched is such a manner that a similar right is implied when invoked by a party litigant. It says that the aid may be invoked in the manner provided in the Code of Civil Procedure. And this right has been declared absolute and substantial by this Court in several cases where the aid of assessors had been invoked (Berbari vs. Concepcion, et al., 40 Phil., 320; Colegio de San Jose vs. Sison, 54 Phil., 344.) Thus, it was there said that these provisions "necessarily lead to the conclusion that the intervention of the assessors is not an empty formality which may be disregarded without violating either the letter or the spirit of the law. It is another security given by the law to the litigants, and as such, it is a substantial right of which they cannot be deprived without vitiating all the proceedings. Were we to agree that for one reason or another the trial by assessors may be done away with, the same line of reasoning would force us to admit that the parties litigant may be deprived of their right to be represented by counsel, to appear and be present at the hearings, and so on, to the extent of omitting the trial in a civil case, and thus set at naught the essential rights granted by the law to the parties, with consequent nullity of the proceedings." (Colegio de San Jose vs. Sison, 54 Phil., 344, 349.)

Being substantive in nature, it is not difficult to see why the provisions concerning trial by assessors embodied in the Code of Civil Procedure have not been incorporated by the Supreme Court in the present Rules of Court. To have done so, it would have been a travesty of its rule-making power which, by direct mandate of the Constitution, is limited to matters referring to pleading, practice and procedure. The application that the respondents draw from the failure to incorporate these provisions in the present Rules of Court to the effect that the intention was to eliminate them or repeal them all together cannot, therefore, stand in the light of the observations and authorities we have above adverted to.

There is a point in the claim that the provisions concerning trial by assessors embodied in the Code of Civil Procedure are not wholly substantive but portions thereof are remedial such as those which refer to the method of summoning assessors, enforcing their attendance, excusing them from attendance, their compensation, oath, duties and effect of dissent from the opinion of the judge, as to which no cogent reason is seen for their non-incorporation if the intent is not to eliminate them from the Rules of Court. This is true; but it is likewise true that because said remedial provisions are inextricably interwoven with the substantive part, it must have been deemed wise and proper to leave them as they were for reasons of coordination and expediency, it being a truism that the one cannot be detached from the other. Ubi jus ibi remedium. Remedial measures are but implementary in character and they must be appended to the portion of the law to which they belong. Mention should be made here that not all of the provisions appearing in the Code of Civil Procedure are remedial in nature, such as those pertaining to prescription, the requisites for making a will, and the succession of the estate of an adopted child, which are admittedly substantive in character and for

that reason were not incorporated in the Rules of Court. To this group belong the provisions under consideration.

Granting arguendo that the provisions on assessors of the Code of Civil Procedure and even in the old Charter of Manila are purely remedial in nature and because of the failure to incorporate them in the Rules of Court they are deemed to have been impliedly repealed as claimed by respondents, we are of the opinion that they can still be invoked by a litigant upon the theory that they had been reaffirmed and reenacted by Republic Act No. 409, which was approved in 1949, or nine years after the Rules of Court became effective. As already stated, section 49 of said Act states that the aid of assessors may be invoked in the manner provided in the Code of Civil Procedure. It likewise states that the parties desiring to avail themselves for the use of assessors shall proceed as provided for by law. The mention made of the Code of Civil Procedure in said section indicates in itself a re-enactment or incorporation by reference of the provisions concerning assessors contained in said law. Congress, whose members were mostly lawyers, must be presumed to know that at the time said Act was approved the Rules of Court had already been promulgated without incorporating therein the provisions concerning the aid to assessors, and fully cognizant of this situation, and not desiring to omit this right granted to a litigant, they must have deemed it wise and proper to re-enact them by reference in said section 49. This Congress can do, for, while our Constitution has given the power to adopt rules of procedure to the Supreme Court, such grant did not preclude Congress from enacting any procedural law or altering, amending, or supplementing any of the rules that may be promulgated by the Supreme Court (Section 13, Article VIII, Philippine Constitution).

The practice of making such reference has long been sanctioned. Our Congress did this not only in connection with courts in the City of Manila. It also did it in connection with courts in Quezon City (Republic Act No. 537). Statutes which refer to other statutes and make them applicable to the subject for legislation are called "reference statutes". These statutes are frequently used "to avoid encumbering the statute books by unnecessary repetition, and they have frequently been recognized as an approval method of legislation, in the absence of constitutional restrictions." [50 Am. Jur. 57; Gruen vs. Tax Commission, 211 P. (2d) (1949) 651, 666.].

Again, it has been held that "The adoption of an earlier statute by reference makes it as much as a part of the latter act as though it had been incorporated at full length. This is true of a legislative act which refers to another act for the procedure to be taken." (50 Am. Jur. 58.) The reference in Republic Act No. 409 to the provisions on assessors must be deemed, therefore, to have incorporated therein the pertinent provisions on the matter contained in the Code of Civil Procedure in much the same manner as if the whole provisions had been reproduced. Consistent with this theory, we cannot but hold that the observations made by respondents to the effect that the reference made to said provisions is section 49 is a mere surplusage, or was due to a mere oversight, has no legal basis, as such innuendo would be tantamount to imputing lack of foresight, if not brazen negligence, to our legislative body.

It is finally contended that section 49 of Republic Act No. 409 is unconstitutional because it violates the constitutional provisions that procedural rules "shall be uniform for all courts of the same grade" and, therefore, it is a class legislation. This contention cannot be entertained: firstly, because it is raised for the first time in this instance, a procedural defect which would bar any further discussion on the matter following well-known precedents1 and, secondly, because it is not correct that at present only in Manila trial with the aid of assessors may be invoked if we will sustain the theory that the promulgation of the Rules of Court did not have the effect of repealing the provisions on assessors embodied in the Code of Civil Procedure.

The contention of respondents — we reckon — is predicated on the assumption that the provisions on assessors of the Code of Civil Procedure had been impliedly repealed. Such is not the case. We

have already pointed out that the basic provisions on the matter partake of the nature of substantive law and as such they were left intact by the Supreme Court. The corollary to this conclusion is that this remedy may be invoked out only in Manila but in all other places where it existed prior to the promulgation of the Rules of Court. This is true in civil cases. With regard to criminal cases, we have already said that the same remedy may be invoked in the cities of Cebu, Iloilo and Quezon, with the particularity that their charters make express reference, either directly or indirectly, to the provisions of the code of Civil Procedure. With this historical background, the claim that under the theory we have entertained the trial with the aid of assessors can only be invoked in the City of Manila is certainly without merit.

In view of the foregoing, we hold that the provisions on assessors embodied in the Code of Civil Procedure are still in force and that the same may still be invoked in the light of the provisions of section 49 of the Republic Act No. 409. It is therefore our opinion that the respondent Judge acted with abuse of discretion in denying petitioner his right to the aid of assessors in the trial of the two criminal cases now pending in the Court of First Instance of Manila.

Wherefore, petition is hereby granted, without pronouncement as to costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

REYES, J., concurring:

In view of section 49 of Republic Act No. 409, approved June 18, 1949, authorizing the use of assessors in the trial of civil and criminal cases in the city of Manila, I concur in the result.

DOMINGO NEYPES, LUZ G.R. No. 141524FAUSTINO, ROGELIO FAUSTINO,LOLITO VICTORIANO, JACOBOBANIA AND DOMINGO Present :CABACUNGAN,Petitioners, DAVIDE, JR., C.J.PUNO,

PANGANIBAN,QUISUMBING,YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,CARPIO,

- v e r s u s - AUSTRIA-MARTINEZ,CORONA,

CARPIO MORALES,CALLEJO, SR.,AZCUNA,TINGA,CHICO-NAZARIO andGARCIA, JJ.

HON. COURT OF APPEALS, HEIRSOF BERNARDO DEL MUNDO,namely: FE, CORAZON, JOSEFA,SALVADOR and CARMEN, allsurnamed DEL MUNDO, LAND BANKOF THE PHILIPPINES AND HON.ANTONIO N. ROSALES, PresidingJudge, Branch 43, Regional TrialCourt, Roxas, Oriental Mindoro,Respondents. Promulgated :

September 14, 2005x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 

D E C I S I O N 

CORONA, J.: Petitioners Domingo Neypes, Luz Faustino, Rogelio Faustino, Lolito Victoriano, Jacob Obania

and Domingo Cabacungan filed an action for annulment of judgment and titles of land and/or reconveyance and/or reversion with preliminary injunction before the Regional Trial Court, Branch 43, of Roxas, Oriental Mindoro, against the Bureau of Forest Development, Bureau of Lands, Land Bank of the Philippines and the heirs of Bernardo del Mundo, namely, Fe, Corazon, Josefa, Salvador and Carmen.

 In the course of the proceedings, the parties (both petitioners and respondents) filed various

motions with the trial court. Among these were: (1) the motion filed by petitioners to declare the respondent heirs, the Bureau of Lands and the Bureau of Forest Development in default and (2) the motions to dismiss filed by the respondent heirs and the Land Bank of the Philippines, respectively.

 In an order dated May 16, 1997, the trial court, presided by public respondent Judge Antonio N.

Rosales, resolved the foregoing motions as follows: (1) the petitioners motion to declare respondents Bureau of Lands and Bureau of Forest Development in default was granted for their failure to file an answer, but denied as against the respondent heirs of del Mundo because the substituted service of summons on them was improper; (2) the Land Banks motion to dismiss for lack of cause of action was denied because there were hypothetical admissions and matters that could be determined only after trial, and (3) the motion to dismiss filed by respondent heirs of del Mundo, based on prescription, was also denied because there were factual matters that could be determined only after trial.[1]

 The respondent heirs filed a motion for reconsideration of the order denying their motion to

dismiss on the ground that the trial court could very well resolve the issue of prescription from the bare allegations of the complaint itself without waiting for the trial proper.

 In an order[2] dated February 12, 1998, the trial court dismissed petitioners complaint on the

ground that the action had already prescribed. Petitioners allegedly received a copy of the order of dismissal on March 3, 1998 and, on the 15 th day thereafter or on March 18, 1998, filed a motion for reconsideration. On July 1, 1998, the trial court issued another order dismissing the motion for reconsideration[3] which petitioners received on July 22, 1998. Five days later, on July 27, 1998, petitioners filed a notice of appeal[4] and paid the appeal fees on August 3, 1998.

 On August 4, 1998, the court a quo denied the notice of appeal, holding that it was filed eight

days late.[5] This was received by petitioners on July 31, 1998. Petitioners filed a motion for reconsideration but this too was denied in an order dated September 3, 1998.[6]

 Via a petition for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil Procedure,

petitioners assailed the dismissal of the notice of appeal before the Court of Appeals. In the appellate court, petitioners claimed that they had seasonably filed their notice of appeal.

They argued that the 15-day reglementary period to appeal started to run only on July 22, 1998 since this was the day they received the final order of the trial court denying their motion for reconsideration. When they filed their notice of appeal on July 27, 1998, only five days had elapsed and they were well within the reglementary period for appeal.[7]

 On September 16, 1999, the Court of Appeals (CA) dismissed the petition. It ruled that the 15-day

period to appeal should have been reckoned from March 3, 1998 or the day they received the February 12, 1998 order dismissing their complaint. According to the appellate court, the order was the final order appealable under the Rules. It held further:

 Perforce the petitioners tardy appeal was correctly dismissed for the (P)erfection

of an appeal within the reglementary period and in the manner prescribed by law is jurisdictional and non-compliance with such legal requirement is fatal and effectively renders the judgment final and executory.[8]

  Petitioners filed a motion for reconsideration of the aforementioned decision. This was denied by the Court of Appeals on January 6, 2000. In this present petition for review under Rule 45 of the Rules, petitioners ascribe the following errors allegedly committed by the appellate court:

    I 

THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE PETITIONERS PETITION FOR CERTIORARI AND MANDAMUS AND IN AFFIRMING THE ORDER OF THE HON. JUDGE ANTONIO N. ROSALES WHICH DISMISSED THE PETITIONERS APPEAL IN CIVIL CASE NO. C-36 OF THE REGIONAL TRIAL COURT, BRANCH 43, ROXAS, ORIENTAL MINDORO, EVEN AFTER THE PETITIONERS HAD PAID THE APPEAL DOCKET FEES. 

II 

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN RULING AND AFFIRMING THE DECISION OR ORDER OF THE RESPONDENT HON. ANTONIO M. ROSALES THAT PETITIONERS APPEAL WAS FILED OUT OF TIME WHEN PETITIONERS RECEIVED THE LAST OR FINAL ORDER OF THE COURT ON JULY 22, 1998 AND FILED THEIR NOTICE OF APPEAL ON JULY 27, 1998 AND PAID THE APPEAL DOCKET FEE ON AUGUST 3, 1998.

 III 

THE HONORABLE COURT OF APPEALS FURTHER ERRED IN RULING THAT THE WORDS FINAL ORDER IN SECTION 3, RULE 41, OF THE 1997 RULES OF CIVIL PROCEDURE WILL REFER TO THE [FIRST] ORDER OF RESPONDENT JUDGE HON. ANTONIO M. MORALES DATED FEBRUARY 12, 1998 INSTEAD OF THE LAST AND FINAL ORDER DATED JULY 1, 1998 COPY OF WHICH WAS RECEIVED BY PETITIONERS THROUGH COUNSEL ON JULY 22, 1998.

 IV. 

THE HONORABLE COURT OF APPEALS FINALLY ERRED IN FINDING THAT THE DECISION IN THE CASE OF DENSO, INC. V. IAC, 148 SCRA 280, IS APPLICABLE IN THE INSTANT CASE THEREBY IGNORING THE PECULIAR FACTS AND CIRCUMSTANCES OF THIS CASE AND THE FACT THAT THE SAID DECISION WAS RENDERED PRIOR TO THE ENACTMENT OF THE 1997 RULES OF CIVIL PROCEDURE.[9]

 The foregoing issues essentially revolve around the period within which petitioners should have filed their notice of appeal.First and foremost, the right to appeal is neither a natural right nor a part of due process. It is merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of law. Thus, one who seeks to avail of the right to appeal must comply with the requirements of the Rules. Failure to do so often leads to the loss of the right to appeal. [10] The period to appeal is fixed by both statute and procedural rules. BP 129,[11] as amended, provides: Sec. 39. Appeals. The period for appeal from final orders, resolutions, awards, judgments, or

decisions of any court in all these cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from. Provided, however, that in habeas corpus cases, the period for appeal shall be (48) forty-eight hours from the notice of judgment appealed from. x x x

  Rule 41, Section 3 of the 1997 Rules of Civil Procedure states:

 SEC. 3. Period of ordinary appeal. ― The appeal shall be taken within fifteen (15) days from the notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from the notice of judgment or final order. 

The period to appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (emphasis supplied)  

Based on the foregoing, an appeal should be taken within 15 days from the notice of judgment or final order appealed from. A final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do with respect to it. It is an adjudication on the merits which, considering the evidence presented at the trial, declares categorically what the rights and obligations of the parties are; or it may be an order or judgment that dismisses an action.[12]

 As already mentioned, petitioners argue that the order of July 1, 1998 denying their motion for reconsideration should be construed as the final order, not the February 12, 1998 order which dismissed their complaint. Since they received their copy of the denial of their motion for reconsideration only on July 22, 1998, the 15-day reglementary period to appeal had not yet lapsed when they filed their notice of appeal on July 27, 1998.

 What therefore should be deemed as the final order, receipt of which triggers the start of the 15-

day reglementary period to appeal the February 12, 1998 order dismissing the complaint or the July 1, 1998 order dismissing the MR?

In the recent case of Quelnan v. VHF Philippines, Inc.,[13] the trial court declared petitioner Quelnan non-suited and accordingly dismissed his complaint. Upon receipt of the order of dismissal, he filed an omnibus motion to set it aside. When the omnibus motion was filed, 12 days of the 15-day period to appeal the order had lapsed. He later on received another order, this time dismissing his omnibus motion. He then filed his notice of appeal. But this was likewise dismissed ― for having been filed out of time.

The court a quo ruled that petitioner should have appealed within 15 days after the dismissal of his complaint since this was the final order that was appealable under the Rules. We reversed the trial court and declared that it was the denial of the motion for reconsideration of an order of dismissal of a complaint which constituted the final order as it was what ended the issues raised there. This pronouncement was reiterated in the more recent case of Apuyan v. Haldeman et al.[14] where we again considered the order denying petitioner Apuyans motion for reconsideration as the final order which finally disposed of the issues involved in the case. Based on the aforementioned cases, we sustain petitioners view that the order dated July 1, 1998 denying their motion for reconsideration was thefinal order contemplated in the Rules.

We now come to the next question: if July 1, 1998 was the start of the 15-day reglementary period to appeal, did petitioners in fact file their notice of appeal on time?

 Under Rule 41, Section 3, petitioners had 15 days from notice of judgment or final order to appeal

the decision of the trial court. On the 15 thday of the original appeal period (March 18, 1998), petitioners did not file a notice of appeal but instead opted to file a motion for reconsideration. According to the trial court, the MR only interrupted the running of the 15-day appeal period. [15] It ruled that petitioners, having filed their MR on the last day of the 15-day reglementary period to appeal, had only one (1) day left to file the notice of appeal upon receipt of the notice of denial of their MR. Petitioners, however, argue that they were entitled under the Rules to a fresh period of 15 days from receipt of the final order or the order dismissing their motion for reconsideration.

In Quelnan and Apuyan, both petitioners filed a motion for reconsideration of the decision of the trial court. We ruled there that they only had the remaining time of the 15-day appeal period to file the notice of appeal. We consistently applied this rule in similar cases, [16] premised on the long-settled doctrine that the perfection of an appeal in the manner and within the period permitted by law is not only mandatory but also jurisdictional.[17] The rule is also founded on deep-seated considerations of public policy and sound practice that, at risk of occasional error, the judgments and awards of courts must become final at some definite time fixed by law.[18]

 

Prior to the passage of BP 129, Rule 41, Section 3 of the 1964 Revised Rules of Court read: 

Sec. 3. How appeal is taken. Appeal maybe taken by serving upon the adverse party and filing with the trial court within thirty (30) days from notice of order or judgment, a notice of appeal, an appeal bond, and a record on appeal.  The time during which a motion to set aside the judgment or order or for new trial has been pending shall be deducted, unless such motion fails to satisfy the requirements of Rule 37.

 But where such motion has been filed during office hours of the last day of the

period herein provided, the appeal must be perfected within the day following that in which the party appealing received notice of the denial of said motion. [19] (emphasis supplied)

  According to the foregoing provision, the appeal period previously consisted of 30 days. BP 129, however, reduced this appeal period to 15 days. In the deliberations of the Committee on Judicial Reorganization[20] that drafted BP 129, the raison d etre behind the amendment was to shorten the period of appeal[21] and enhance the efficiency and dispensation of justice. We have since required strict observance of this reglementary period of appeal. Seldom have we condoned late filing of notices of appeal,[22] and only in very exceptional instances to better serve the ends of justice. 

In National Waterworks and Sewerage Authority and Authority v. Municipality of Libmanan ,[23] however, we declared that appeal is an essential part of our judicial system and the rules of procedure should not be applied rigidly. This Court has on occasion advised the lower courts to be cautious about not depriving a party of the right to appeal and that every party litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, free from the constraint of technicalities.

 In de la Rosa v. Court of Appeals,[24] we stated that, as a rule, periods which require litigants to do

certain acts must be followed unless, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice. There, we condoned the delay incurred by the appealing party due to strong considerations of fairness and justice.

In setting aside technical infirmities and thereby giving due course to tardy appeals, we have not been oblivious to or unmindful of the extraordinary situations that merit liberal application of the Rules. In those situations where technicalities were dispensed with, our decisions were not meant to undermine the force and effectivity of the periods set by law. But we hasten to add that in those rare cases where procedural rules were not stringently applied, there always existed a clear need to prevent the commission of a grave injustice. Our judicial system and the courts have always tried to maintain a healthy balance between the strict enforcement of procedural laws and the guarantee that every litigant be given the full opportunity for the just and proper disposition of his cause. [25]

The Supreme Court may promulgate procedural rules in all courts. [26] It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42,[27] 43[28] and 45,[29] the Court allows extensions of time, based on justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more.

 To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to

appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. [30]

 Henceforth, this fresh period rule shall also apply to Rule 40 governing appeals from the

Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies [31] to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.[32] The new rule aims to regiment or

make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

We thus hold that petitioners seasonably filed their notice of appeal within the fresh period of 15 days, counted from July 22, 1998 (the date of receipt of notice denying their motion for reconsideration). This pronouncement is not inconsistent with Rule 41, Section 3 of the Rules which states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The use of the disjunctive word or signifies disassociation and independence of one thing from another. It should, as a rule, be construed in the sense in which it ordinarily implies. [33] Hence, the use of or in the above provision supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of the final order, which we already determined to refer to the July 1, 1998 order denying the motion for a new trial or reconsideration.

 Neither does this new rule run counter to the spirit of Section 39 of BP 129 which shortened the

appeal period from 30 days to 15 days to hasten the disposition of cases. The original period of appeal (in this case March 3-18, 1998) remains and the requirement for strict compliance still applies.  The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for reconsideration. In this manner, the trial court which rendered the assailed decision is given another opportunity to review the case and, in the process, minimize and/or rectify any error of judgment. While we aim to resolve cases with dispatch and to have judgments of courts become final at some definite time, we likewise aspire to deliver justice fairly.

 In this case, the new period of 15 days eradicates the confusion as to when the 15-day appeal

period should be counted from receipt of notice of judgment (March 3, 1998) or from receipt of notice of final order appealed from (July 22, 1998).

 To recapitulate, a party litigant may either file his notice of appeal within 15 days from receipt of

the Regional Trial Courts decision or file it within 15 days from receipt of the order (the final order) denying his motion for new trial or motion for reconsideration. Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41, Section 3.

Petitioners here filed their notice of appeal on July 27, 1998 or five days from receipt of the order denying their motion for reconsideration on July 22, 1998. Hence, the notice of appeal was well within the fresh appeal period of 15 days, as already discussed.[34]

 We deem it unnecessary to discuss the applicability of Denso (Philippines), Inc. v. IAC[35] since the Court of Appeals never even referred to it in its assailed decision.

 WHEREFORE, the petition is hereby GRANTED and the assailed decision of the Court of

Appeals REVERSED and SET ASIDE. Accordingly, let the records of this case be remanded to the Court of Appeals for further proceedings. No costs.