33

G.R. No. L-2068 October 20, 1948DOMINADOR 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 respondentTUASON,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. InDequito 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 OpinionsFERIA,J.,dissentingI 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 ofmandamuswas 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 ofDequito and Saling Buhayvs.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 adoptedin totothe 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 ofDequitoand Saling Buhayvs.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.,dissentingIn our concurring and dissenting opinion in the case ofDequito and Saling Buhay vs.Arellano, No. L-1336, we said:In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face to face." (Section 1 [17], Article III.)chanrobles virtual law libraryConsequently, 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 NMarch 8, 1949 TUASON,J.: This cause is now before us on a motion for reconsideration.In the decision sought to be reconsidered, we said, citingDequito and Saling Buhayvs.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 forcertiorari. 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 Court1infringes section 13, Article VIII, of the Constitution.2It 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. (Statevs. 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 Beazellvs. 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.SeeCaldervs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummingsvs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kringvs. 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. Kringvs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompsonvs. 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 anex post factolaw. Hoptvs. 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, Thompsonvs. 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.SeeDuncanvs. 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 prohibitionWhile 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. (Dextervs. Edmands, 89 F., 467; Beazellvs. 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 grantedAccording 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." (Statevs. 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 asjuris tantumpresumption, 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,isconvicted without the process of law," (United Statesvs. Banzuela, 31 Phil., 564).The ruling in Beazellvs. 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 ofex 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 thesubstantive rightof 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," (Dextervs. 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 assumingarguendothat it is difficult to draw the linein anyparticular casebeyond 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.Endnotes:TUASON, J.: 1Rights 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. 2The 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.[G.R. No. 129742.September 16, 1998]TERESITA G. FABIANpetitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as ombudsman; HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V. AGUSTINrespondents.D E C I S I O NREGALADO,J:Petitioner has appealed to us bycertiorariunder Rule 45 of the Rules of Court from the "Joint Order" issued by public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the motion for reconsideration of and absolved private respondents from administrative charges forinter aliagrave misconduct committed by him as then Assistant Regional Director, Region IV-A, Department of Public Works and Highways (DPWH).IIt appears from the statement and counter-statement of facts of the parties that petitioner Teresita G. Fabian was the major stockholder and president of PROMAT Construction Development Corporation (PROMAT) which was engaged in the construction business.Private respondents Nestor V. Agustin was the incumbent District Engineering District (FMED) when he allegedly committed the offenses for which he was administratively charged in the Officein the office of the Ombudsman.Promat participated in the bidding for government construction project including those under the FMED, and private respondent, reportedly taking advantage of his official position, inveigled petitioner into an amorous relationship.Their affair lasted for some time, in the course of which private respondents gifted PROMAT with public works contracts and interceded for it in problems concerning the same in his office.Later, misunderstanding and unpleasant incidents developed between the parties and when petitioner tried to terminate their relationship, private respondent refused and resisted her attempts to do so to the extent of employing acts of harassment, intimidation and threats.She eventually filed the aforementioned administrative case against him in a letter-complaint dated July 24, 1995.The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service Decree), with an ancillary prayer for his preventive suspension.For purposes of this case, the charges referred to may be subsumed under the category of oppression, misconduct, and disgraceful or immoral conduct.On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private respondents guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all benefits under the law.His resolution bore the approval of Director Napoleon Baldrias and Assistant OmbudsmanAbelardo Aportadera of their office.Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution with modifications, by finding private respondent guilty of misconduct and meting out the penalty of suspension without pay for one year.After private respondent moved for reconsideration, respondent Ombudsman discovered that the former's new counsel had been his "classmate and close associate" hence he inhibited himself.The case was transferredto respondent Deputy Ombudsman Jesus F. Guerrerowho, in the now challenged Joint Order of June 18, 1997, set aside the February 26, 1997 Order of respondent Ombudsman and exonerated private respondents from the administrative charges.IIIn the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989)[1]pertinently provides that -In all administrative diciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the SupremeCourt by filing a petitionforcertiorariwithinten (10)days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsiderationin accordance with Rule 45 of the Rules of Court. (Emphasis supplied)However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the office of the Ombudsman),[2]when a respondent is absolved of the charges in an administrativeproceedingdecision of the ombudsman is final and unappealable.She accordingly submits that theoffice of the ombudsman has no authority under the law to restrict, in the manner provided in its aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power ofreview of this Court.Because of the aforecited provision in those Rules of Procedure, she claims that she found it "necessary to take an alternative recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the availability of appeals underRule 45 of the Rules of Court.Respondents filed their respective comments and rejoined that the Office of the Ombudsman is empowered by the Constitution and the law to promulgate its own rules of procedure.Section 13(8), Article XI of the 1987 Constitution provides, among others, that the Office of the Ombudsman can "(p)romulgateits rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law."Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions:Sec.14.Restrictions.- x x x No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman except the Supreme Court on pure question on law.x x xSec. 18.Rules of Procedure.-(1) The Office of the Ombudsman shall promulgate its own rules of procedure for the effective exercise or performance of its powers, functions, and duties.x x xSec. 23.Formal Investigation. - (1) Administrative investigations by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with the due process.x x xx x xSec. 27.EffectivityandFinality of Decisions.-All provisionary orders at the Office of the Ombudsman are immediately effective and executory.A motion for reconsideration of any order, directive or decisionof the Office of the Ombudsman must be filed withinfive (5) days after receipt of written notice shall be entertained only on any of the following grounds:x x xFindings of fact by the Office of the Ombudsman when supported by substantialevidenceare conclusive.Any order, directive or decisionimposing the penalty of public censure or reprimand, suspension of not more than one month salary shall be final and unappealable.In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filingapetition forcertiorariwithin ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion forreconsideration in accordance with Rule 45 of the Rules of Court.The above rules may be amendedor modified by the Office of the Ombudsman as the interest of justice may require.Respondents consequently contend that, on the foregoing constitutional and statutory authority, petitioner cannot assail the validity of the rules of procedure formulated by the Office of the Ombudsman governing the conduct of proceeding before it, including those with respect to the availabity or non-avalability of appeal in administrative cases. Such as Section 7, Rule III of Administrative Order No.07.Respondents also question the propriety of petitioner's proposition that, although she definitely prefaced her petition by categorizing the same as "an appeal bycertiorariunder Rule 45 of the Rules of Court," she makes the aforequoted ambivalent statement which in effect asks that, should the remedy underRule 45 be unavailable, her petition be treated in the alternative as an original action forcertiorariunder Rule 65.The parties thereafter engage in a discussion of the differences between a petition for review oncertiorariunder Rule 45 and a special civil action of certiorari under Rule 65.Ultimately, they also attempt to reviewand rationalize thedecision of this Court applyingSection 27 of Republic Act No. 6770 vis--vis Section 7, Rule III of Administrative Order No. 07.As correctly pointed out by public respondents, Ocampo IV vs.Ombudsman, et al.[3]andYoung vs. Office of the Ombudsman, et al.[4]were original actions forcertiorariunder Rule 65.Yabut vs. Office of the Ombudsman, et al.[5]was commenced bya petition for review oncertiorariunder Rule 45.Then came Cruz, Jr. vs. People, et al.,[6]Olivas vs. Office of the Ombudsman, et al.,[7]Olivarez vs. Sandiganbayan, et al.,[8]and Jao, et al. vs. Vasquez,[9]which were forcertiorari, prohibition and/or mandamus under Rule 65.Alba vs. Nitorreda, et al.[10]was initiated by a pleading unlikely denominated as an "Appeal/Petition forCertiorariand/or Prohibition," with a prayer for ancillary remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano Desierto, et al.[11]which was a special civil action forcertiorari.Considering, however the view that this Court now takes of the case at bar and the issues therein which will shortly be explained, it refrains from preemptively resolving the controverted points raised by the parties on the nature and propriety of application of the writ ofcertiorariwhen used as a mode of appeal or as the basis of a special original action, and whether or not they may be resorted to concurrently or alternatively, obvious though the answers thereto appear to be.Besides, some seemingly obiter statements in Yabutsand Alba could bear reexamination and clarification.Hence, we will merely observe and lay down the rule at this juncture that Section 27 of Republic Act No. 6770 is involved only whenever an appeal bycertiorariunder Rule 45 is taken from a decision in an administrative diciplinary action.It cannot be taken into account where an original action forcertiorariunder Rule 65 is resorted to as a remedy for judicial review, such asfrom an incident in a criminal action.IIIAfter respondents' separate comments had been filed, the Court was intrigued by the fact, which does appear to have been seriously considered before, that the administrativeliability of a public official could fall under the jurisdiction of both the Civil Service Commission and the Office of the Ombudsman.Thus, the offenses imputed to herein private respondent were based on both Section 19 of Republic Act. No. 6770 and Section 36 of Presidential Decree No. 807.Yet, pursuant to the amendment of section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by Civil Service Commission in administrative disciplinary cases were made appealable to the Court of Appeals effective March 18, 1995, while those of the Office of the Ombudsman are appealable to this Court.It could thus be possible that in the same administrative case involving two respondents, the proceedings against one could eventually have been elevated to the Court of Appeals, while the other may have found its way to the Ombudsman from which it is sought to be brought to this Court.Yet systematic and efficient case management would dictate the consolidation of those cases in the Court of Appeals, both for expediency and to avoid possible conflicting decisions.Then there is the consideration that Section 30, Article VI of the 1987 Constitution provides that "(n)o law shall be passed increasing the appellate indiction of the Supreme Court as provided in this Constitution without its advice and consent," and that Republic Act No. 6770, with its challengedSection 27, took effect on November 17, 1989, obviously in spite of that constitutional grounds must be raised by a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.Since the constitution is intended fort the observance of the judiciary and other departments of the government and the judges are sworn to support its provisions, the courts arenot at liberty to overlook or disregard its commands or countenance evasions thereof.When it is clear that a statute trangresses the authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and not the statute, governs in a case before them for judgement.[12]Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings,[13]the rule has been recognized to admit of certain exceptions.It does not preclude a court from inquiring into its own jurisdiction or compel it to enter a judgement that it lacks jurisdiction to enter.If a statuteon which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no jurisdiction in theproceeding, and since it may determine whether or not it has jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute.[14]Constitutional question, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the jurisdiction of the court below or that of the appellatecourt is involved in which case it may be raised at any time or on the court's own motion.[15]The Courtex mero motumay take cognizance of lack of jurisdiction at any point in the case where the fact is developed.[16]The court has a clearly recognized right to determine its own jurisdictionin any proceeding.[17]The foregoing authorities notwithstanding, the Court believed that the parties hereto should be further heard on this constitutional question.Correspondingly, the following resolution was issued on May 14, 1998, the material parts stating as follows:The Court observes that the present petition, from the very allegations thereof, is "anappeal bycertiorariunder Rule 45 of the Rules of Court from the 'Joint Order (Re: Motion for Reconsideration)' issued in OMB-Adm. Case No. 0-95-0411, entitled 'Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-A, EDSA, Quezon City,' which absolved the latter from the administrative charges for grave misconduct, among other."It is further averred therein that the present appeal to this Court is allowed under Section 27 of the Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto, the Office of the Ombudsman issued its Rules of Procedure, Section 7 whereof is assailed by petitioner in this proceeding.It will be recalled that R.A. No. 6770 was enacted on November 17, 1989, with Section 27 thereof pertinently providing that all administrative diciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to this Court in accordance with Rule 45 of the Rules of Court.The Court notes, however, that neither the petition nor the two comments thereon took into account or discussed the validity of the aforestated Section 27 of R.A. No. 8770 in light of the provisions of Section 30, Article VI of the 1987 Constitution that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advise and consent."The Court also invites the attention of the parties to its relevant ruling inFirst Lepanto Ceramics, Inc. vs. The Court of Appeals , et al. (G.R. No. 110571, October 7, 1994, 237 SCRA 519) and the provisions ofits former Circular No. 1-95,as now substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil Procedure.In view of the fact that the appellate jurisdiction of the Court is invoked and involved and in this case, and the foregoing legal consideration appear to impugn the constitutionalityand validity of the grant of said appellate jurisdiction to it, the Court deems it necessary that the parties beheard thereon and the issue be first resolved before conducting further proceedings in this appellate review.ACCORDINGLY, the Court Resolved to require the parties to Submit their position and arguments on the matter subject of this resolution by filing their corresponding pleadings within ten (10) days from notice hereof.IVThe records do not show that the Office of the Solicitor General has complied with such requirement, hence the Court dispenses with any submission it should have presented.On the other hand, petitioner espouses the theory that the provision in Section 27 of Republic Act No. 6770 which authorizes an appeal bycertiorarito this Court of the aforementioned adjudications of the Ombudsman is not violative of Section 30, Article VI of the Constitution.She claims that what is proscribed is the passage of law "increasing" the appellate jurisdiction of this Court "as provided in this Constitution," and such appellate jurisdiction includes "all cases in which only an error or question of law is involved."Since Section 5(2)(e), Article VIII of the Constitution authorizes this Courtto review, revise, reverse, modify, or affirm on appeal orcertiorarithe aforesaid final judgement or orders "as the law or the Rules of Court may provide," said Section 27 does not increase this Court may provide," said section 27does not increase this Court's appellate jurisdiction since, by providing that the mode of appeal shall be by petition forcertiorariunder Rule 45, then what may be raised therein are only questions of law of which this Court already has of which this Court already has jurisdiction.We are not impressed by this discourse.It overlooks the fact that by jurisprudential developments over the years, this Court has allowed appeals bycertiorariunder Rule 45in a substantial number of cases and instances even if questions of fact are directly involved and have to be resolved by the appellate court.[18]Also, the very provision cited by petitioner specifies that the appellate jurisdiction of this Court contemplated therein is to be exercised over "final judgements and orders of lower courts," that is, the courts composing the integrated judicial system.It does not include the quasi-judicial bodies or agencies, hence whenever the legislature intends that the decisions or resolutions of the quasi-judicial agency shall be reviewable by the Supreme Court or the Court of Appeals, a specific provision to that effect is included in the law creating that quasi-judicial agency and, for that matter, any special statutory court.No such provision on appellate procedure is required for the regular courts of the integrated judicial systembecause they are what are referred to and already provided for in Section 5, Article VIII of the Constitution.Apropos to the foregoing, and as correctly observed by privaterespondent, the revised Rules of Civil Procedure[19]preclude appealsfrom quasi-judicial agencies to the Supreme Court viaa petition for review oncertiorariunder Rule 45.In the 1997 Rules of Civil Procedure, Section 1 Rule 45, on "Appeal byCertiorarito the Supreme Court," explicitly states:SECTION 1 .Filing of petition with Supreme Court. - A person desiring to appeal bycertiorarifrom a judgement or final order or Resolution of theCourt of Appeals, the Sandiganbayan, the Regional Trial Court or other court whenever authorized by law, may file with the Supreme Court a verified petition for review oncertiorari.The petition shall raise only question of law which must be distinctly set forth. (Italics ours).This differs from the former Rule 45 of the 1964 Rules of Court which made mention only of the Court of Appeals, and had to be adopted in statutes creating and providing for appeals from certain administrative or quasi-judicial agencies, whenever the purpose was to restrict the scope of the appeal to questions of law.That intended limitation on appellate review, as we have just discussed, was not fully subserved by recourse to the former Rule 45 but, then, at that time there was no uniform rule on appeals from quasi-judicial agencies.Under the present Rule 45, appeals may be brought through a petition for review on certiorari but only from judgments and final orders of the courtsenumerated in Section 1 thereof.Appeals from judgments and final orders of quasi-judicial agencies[20]are now required to be brought to the Court of Appeals on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies .[21]It is suggested, however, that the provisions of Rule 43 should apply only to "ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is a "high constitutional body." We see no reason for this distinction for, if hierarchical rank should be a criterion, that proposition thereby disregards the fact that Rule 43 even includes the Office of the President and the Civil Service Commission, although the latter is even an independent constitutional commission, unlike the Office of the Ombudsman which is a constitutionally-mandated but statutorily created body.Regarding the misgiving that the review of the decision of the Office of the Ombudsman by the Court of Appeals would cover questions of law, of fact or of both, we do not perceive that as an objectionable feature.After all, factual controversies are usually involved in administrative disciplinary actions, just like those coming from the Civil Service, Commission, and the Court of Appeals as a trier of fact is better prepared than this Court to resolve the same.On the other hand, we cannot have this situation covered by Rule 45 since it now applies only to appeals from the regular courts.Neither can we place it under Rule 65 since the review therein is limited to jurisdictional questions.*The submission that because this Court has taken cognizance of cases involving Section 27 of Republic Act No. 6770, that fact may be viewed as "acquiescence" or "acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is unfortunately too tenuous.The jurisdiction of a court is not of acquiescence as a matter of fact but an issue of conferment as a matter of law. Besides, we have already discussed the cases referred to, including the inaccuracies of some statements therein, and we have pointed out the instances when Rule 45 is involved, hence covered by Section 27 of Republic Act No. 6770 now under discussion, and when that provision would not apply if it is a judicial review under Rule 65.Private respondent invokes the rule that courts generally avoid having to decide a constitutional question, especially when the case can be decided on other grounds.As a general proposition that is correct.Here, however, there is an actual case susceptible of judicial determination.Also, the constitutional question, at the instance of this Court, was raised by the proper parties, although there was even no need for that because the Court can rule on the mattersua spontewhen its appellate jurisdiction is involved.The constitutional question was timely raised, although it could even be raised any time likewise by reason of the jurisdictional issue confronting the Court.Finally, the resolution of the constitutional issue here is obviously necessary for the resolution of the present case.[22]It is, however, suggested that this case could also be decided on other grounds, short of passing upon; the constitutional question.We appreciate the ratiocination of private respondent but regret that we must reject the same.That private respondent could be absolved of the charge because the decision exonerating him is final and unappealable assumes that Section 7, Rule III of Administrative Order No. 07 is valid, but that is precisely one of the issues here.The prevailing rule that the Court should not interfere with the discretion of the Ombudsman in prosecuting or dismissing a complaint is not applicable in this administrative case, as earlier explained.That two decisions rendered by this Court supposedly imply the validity of the aforementioned Section 7 of Rule III is precisely under review here because of some statements therein somewhat at odds with settled rules and the decisions of this Court on the same issues, hence to invoke the same would be to beg the question.VTaking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of Republic Act No. 6770 cannot validly authorize anappealto this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases.It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases the Appellatejurisdiction of this Court.No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in First Leparto Ceramics, Inc. vs.The Court of Appeals, el al.[23]was intended to give this Court a measure of control over cases placed under its appellate Jurisdiction.Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court[24]We perforce have to likewise reject the supposed inconsistency of the ruling in First LepantoCeramicsand some statements in Yabut and Alba,not only because of the difference in the factual settings, but also because those isolated cryptic statements in Yabut and Alba should best be clarified in the adjudication on the merits of this case.By way of anticipation, that will have to be undertaken by the proper court of competent jurisdiction.Furthermore in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and consent, private respondent's position paper correctly yields the legislative background of Republic Act No. 6770. On September 26, 1989, the Conference Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of what would later be Republic Act No. 6770, was approved on second reading by the House of Representatives.[25]The Senate was informed of the approval of the final version of the Act on October 2, 1989[26]and the same was thereafter enacted into law by President Aquino on November 17, 1989.Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the procedure for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of Section 30, Article III of the Constitution.It also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction, and that the Committee on Justice and Human Rights had not consulted this Court on the matter, thus:INTERPELLATION OF SENATOR SHAHANIx x xThereafter, with reference to Section 22(4) which provides that the decisions of the Office of the Ombudsman may be appealed to the Supreme Court, in reply to Senator Shahani's query whether the Supreme Court would agree to such provision in the light of Section 30, Article VI of the Constitution which requires its advice and concurrence in laws increasing its appellate jurisdiction, Senator Angara informed that the Committee has not yet consulted the Supreme Court regarding the matter.He agreed that the provision will expand the Supreme Court's jurisdiction by allowing appeals through petitions for review, adding that they should be appeals oncertiorari.[27]There is no showing that even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and consent .[28]VIAs a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43.There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction which, being substantive in nature, cannot be disregarded by this Court under its rule-making power, especially if it results in a diminution, increase or modification of substantive rights.Obviously, however, where the law is procedural in essence and purpose, the foregoing consideration would not pose a proscriptive issue against the exercise of the rule-making power of this Court.This brings to fore the question of whether Section 27 of Republic Act No. 6770 is substantive or procedural.It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rule-making power, and those which are substantive.In fact, a particular rule may be procedural in one context and substantive in another.[29]It is admitted that what is procedural and what is substantive is frequently a question of great difficulty.[30]It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system.In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them.[31]If the rule takes away a vested right, it is not procedural.If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means o implementing an existing right then the rule deals merely with procedure.[32]In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to procedure only.[33]This is so because it is not the right to appeal of an aggrieved party which is affected by the law.That right has been preserved.Only the procedure by which the appeal is to be made or decided has been changed.The rationale for this is that litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy.[34]Furthermore, it cannot be said that transfer of appellate jurisdiction to the Court of Appeals in this case is an act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to subordinate appellate courts is purely a procedural and not a substantive power.Neither can we consider such transfer as impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that remedy.[35]Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another, are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute went into effect[36]or, in the case at bar, when its invalidity was declared.Accordingly, even from the standpoint of jurisdictionex hypothesithe validity of the transfer of appeals in said cases to the Court of Appeals can be sustained.WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, are hereby declared INVALID and of no further force and effect.The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with said petition to be considered by the Court of Appealspro hac viceas a petition for review under Rule 43, without prejudice to its requiring the parties to submit such amended or supplemental pleadings and additional documents or records as it may deem necessary and proper.SO ORDERED.LU VS LU YM Sr. GR No. 153690 & 157381, February 15, 2011RESOLUTIONNACHURA,J.:For resolution is the Motion for Reconsideration[1]filed by petitioners John Lu Ym and Ludo & LuYm Development Corporation (movants), praying that we reconsider our Decision[2]dated August 26, 2008, where we disposed of the three consolidated cases in this wise:WHEREFORE, premises considered, the petitions in G.R. Nos. 153690 and 157381 areDENIEDfor being moot and academic; while the petition in G.R. No. 170889 isDISMISSEDfor lack of merit.Consequently, theStatus QuoOrder datedJanuary 23, 2006is herebyLIFTED.The Court of Appeals isDIRECTEDto proceed with CA-G.R. CV No. 81163 and to resolve the same with dispatch.SO ORDERED.[3]In support of their motion, the movants advance the following arguments:1. Private respondents are guilty of fraud in avoiding payment of the correct docket fees by not listing the real properties in their Complaint and Amended Complaint despite their admission that the real properties are the subject matter of the case and by their act of annotating notices oflis pendenson the properties of Ludo Dev.2. The present action is not an intra-corporate controversy and therefore the RTC, being a special commercial court, has no jurisdiction over the subject matter of the case.3. The RTC has no jurisdiction to order the dissolution of the Corporation.However, should this Honorable Court decide that the foregoing grounds are not sufficient justification to warrant a dismissal of SRC-021 CEB, petitioners ask that theStatus QuoOrder of this Court be maintained during the appeal of the case or that a Writ of Injunction be issued to stop the immediate implementation of the March 1, 2004 decision based on the following grounds:a) TheMarch 1, 2004decision of the RTC was null and void for denying petitioners right to due process.b) The Management Committee organized by the RTC in theMarch 1, 2004decision was unlawfully constituted.c) Supervening event has made the management committeefunctus oficio.[4]To resolve the motion judiciously, it is necessary to restate, albeit briefly, the factual and procedural antecedents that gave rise to these consolidated petitions.OnAugust 14, 2000, David Lu, Rosa Go, Silvano Ludo and CL Corporation filed with the Regional Trial Court (RTC) ofCebuCitya complaint against Paterno Lu Ym, Sr., Paterno Lu Ym, Jr., Victor Lu Ym, John Lu Ym, Kelly Lu Ym, and Ludo& Luym Development Corporation (LLDC) forDeclaration of Nullity of Share Issue, Receivership and Dissolution.The case was docketed as Civil Case No. CEB-25502.The plaintiffs, shareholders of LLDC, claimed that the Lu Ym father and sons, as members of the Board of Directors, caused the issuance to the latter of 600,000 of the corporations unsubscribed and unissued shares for less than their actual value.They then prayed for the dissolution of the corporation and the appointment of a receiver during the pendency of the action.The defendants therein moved to dismiss the complaint for non-compliance with the requirement of certification of non-forum shopping, and for failure of the plaintiffs to exert efforts towards a compromise.The trial court denied the motion and placed LLDC under receivership.Defendants Lu Ym father and sons elevated the matter to the Court of Appeals through a petition for certiorari, docketed as CA-G.R. SP No. 64154.However, the same was dismissed for insufficient signatures on the verification and certification of non-forum shopping.Subsequently, they re-filed a petition, which was docketed as CA-G.R. SP No. 64523.OnDecember 20, 2001, the CA granted the petition and ordered the dismissal of the complaint.Aggrieved, David Lu (David), et al., came to this Court via G.R. No. 153690.Meanwhile, the Presiding Judge of Branch 6 of the RTC of Cebu City, where the case was initially raffled, inhibited himself on motion of the Lu Ym father and sons.The case was re-raffled to Branch 11.The Presiding Judge of the latter branch directed the parties to amend their respective pleadings in order to conform to the requirements of Republic Act No. 8799, and the case was re-docketed as SRC Case No. 021-CEB.The Lu Ym father and sons then filed with the trial court a motion to lift the order of receivership over LLDC.Before the matter could be heard, David instituted a petition for certiorari and prohibition before the CA on the issue of the motion to lift order of receivership, docketed as CA-G.R. SP No. 73383.On February 27, 2003, the CA granted the petition and ruled that the proceedings on the receivership could not proceed without the parties amending their pleadings.The Lu Ym father and sons thus filed a petition for review with this Court (G.R. No. 157381).In the meantime, the Presiding Judge of Branch 11 also inhibited himself, and the case was transferred to Branch 12.OnMarch 31, 2003, the plaintiffs therein filed a Motion to Admit Complaint to Conform to the Interim Rules Governing Intra-Corporate Controversies, which was admitted by the trial court.OnJanuary 23, 2004, the Lu Ym father and sons inquired from the Clerk of Court as to the amount of docket fees paid by David, et al.John Lu Ym further inquired from the Office of the Court Administrator (OCA) on the correctness of the amount paid by David, et al.The OCA informed John Lu Ym that a query on the matter of docket fees should be addressed to the trial court and not to the OCA.OnMarch 1, 2004, the RTC decided the case on the merits.It annulled the issuance of LLDCs 600,000 shares of stock to the Lu Ym father and sons.It also ordered the dissolution of LLDC and the liquidation of its assets, and created a management committee to take over LLDC.The Lu Ym father and sons appealed to the CA, where the case was docketed as CA-G.R. CV No. 81163.In view of the executory nature of the decision of the trial court, as mandated in theInterim Rules of Procedure for Intra-Corporate Controversies,[5]the Lu Ym father and sons moved for the issuance of a writ of preliminary injunction which, however, was denied by the CA.They filed a motion for reconsideration, wherein they further questioned the sufficiency of the docket fees paid by David, et al. in the RTC.OnDecember 8, 2005, the CA denied the motion for reconsideration and stated that the matter should be raised in the appellants brief to be threshed out in the appeal.Hence, the Lu Ym father and sons filed with this Court a special civil action forcertiorariand prohibition (G.R. No. 170889).OnAugust 26, 2008, this Court rendered judgment as aforesaid.Lu Ym father and sons filed the instant Motion for Reconsideration.We required David, et al., to submit their Comment thereto.With our directive complied with, we now resolve the Motion for Reconsideration.In ourAugust 26, 2008Decision, we declared that the subject matter of the complaint filed by David, et al., was one incapable of pecuniary estimation.Movants beg us to reconsider this position, pointing out that the case filed below by David, et al., had for its objective the nullification of the issuance of 600,000 shares of stock of LLDC.The complaint itself contained the allegation that the real value of these shares, based on underlying real estate values, was One Billion Eighty Seven Million Fifty Five Thousand One Hundred Five Pesos (P1,087,055,105).[6]Upon deeper reflection, we find that the movants claim has merit.The 600,000 shares of stock were, indeed, properties in litigation.They were the subject matter of the complaint, and the relief prayed for entailed the nullification of the transfer thereof and their return to LLDC.David, et al., are minority shareholders of the corporation who claim to have been prejudiced by the sale of the shares of stock to the Lu Ym father and sons.Thus, to the extent of the damage or injury they allegedly have suffered from this sale of the shares of stock, the action they filed can be characterized as one capable of pecuniary estimation.The shares of stock have a definite value, which was declared by plaintiffs themselves in their complaint.Accordingly, the docket fees should have been computed based on this amount.This is clear from the following version of Rule 141, Section 7, which was in effect at the time the complaint was filed:SEC. 7.Clerks of Regional Trial Courts. (a)For filing an action or a permissive counterclaim or money claim against an estate not based on judgment, or for filing with leave of court a third-party, fourth-party, etc. complaint, or a complaint in intervention, and for all clerical services in the same, if the total sum claimed, exclusive of interest, or the stated value of the property in litigation, is:We have earlier held that a court acquires jurisdiction over a case only upon the payment of the prescribed fees.[8]Hence, without payment of the correct docket fees, the trial court did not acquire jurisdiction over the action filed by David, et al.We also stated in our Decision that the earlier rule inManchester Development Corporation v. Court of Appeals[9]has been relaxed.Subsequent decisions now uniformly hold that when insufficient filing fees are initially paid by the plaintiffs and there is no intention to defraud the government, theManchesterrule does not apply.[10]Addressing this point, movants argue that David, et al., were guilty of fraud in that, while they did not mention any real property in their complaint, they were able to obtain the annotation of notices oflis pendenson various real properties of LLDC by alleging in their motion to conduct special raffle that there was an imminent danger that properties subject matter of this case might be disposed of.Moreover, David, et al., prayed for, among others, the liquidation and distribution of the assets of the corporation, so that they may receive their share therein.Among the assets of the corporation are real properties.Hence, the case was, in actuality, a real action that had for its objective the recovery of real property.Fraud is a generic term embracing all multifarious means which human ingenuity can devise and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated.[11]Since fraud is a state of mind, its presence can only be determined by examining the attendant circumstances.[12]It is true, as we held in our Decision, that David, et al., merely relied on the assessment made by the Clerk of Court and cannot be faulted for their payment of insufficient docket fees.However, movants now point out that when David Lu moved for the annotation of notices oflis pendenson real properties owned by LLDC, they in effect acknowledged that the case they filed was a real action.A notice oflis pendensis governed by Rule 13, Section 14 of the Rules of Court, which states:Sec. 14.Notice of lis pendens.In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action.Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby.Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names.The notice oflis pendenshereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded.[13]A notice oflis pendensis an announcement to the whole world that a particular real property is in litigation, serving as a warning that one who acquires interest over said property does so at his own risk, or that he gambles on the result of the litigation over the said property.The filing of a notice oflis pendenscharges all strangers with notice of the particular litigation referred to therein and, therefore, any right they may thereafter acquire over the property is subject to the eventuality of the suit. Such announcement is founded upon public policy and necessity, the purpose of which is to keep the properties in litigation within the power of the court until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent alienation.[14]As a general rule, the only instances in which a notice oflis pendensmay be availed of are as follows: (a) an action to recover possession of real estate; (b) an action for partition; and (c) any other court proceedings that directly affect the title to the land or the building thereon or the use or the occupation thereof.Additionally, this Court has held that resorting tolis pendensis not necessarily confined to cases that involve title to or possession of real property.This annotation also applies to suits seeking to establish a right to, or an equitable estate or interest in, a specific real property; orto enforce a lien, a charge or an encumbrance against it.[15]From the foregoing, it is clear that a notice oflis pendensis availed of mainly in real actions.Hence, when David, et al., sought the annotation of notices oflis pendenson the titles of LLDC, they acknowledged that the complaint they had filed affected a title to or a right to possession of real properties.At the very least, they must have been fully aware that the docket fees would be based on the value of the realties involved.Their silence or inaction to point this out to the Clerk of Court who computed their docket fees, therefore, becomes highly suspect, and thus, sufficient for this Court to conclude that they have crossed beyond the threshold of good faith and into the area of fraud.Clearly, there was an effort to defraud the government in avoiding to pay the correct docket fees.Consequently, the trial court did not acquire jurisdiction over the case.Anent the issue of estoppel, we earlier ruled that the movants are barred from questioning the jurisdiction of the trial court because of their participation in the proceedings therein.In passing upon this issue, we takeheed from the pronouncement of this Court in the recent caseVargas v. Caminas:[16]The Court finds thatTijamis not applicable in the present case.The general rule is that lack of jurisdiction of a court may be raised at any stage of the proceedings.InCalimlim v.Ramirez, the Court statedthatTijamis anexceptionto the general rule because of the presence oflaches:A rule that had been settled by unquestioned acceptance and upheld in decisions so numerous to cite is that the jurisdiction of a court over the subject matter of the action is a matter of law and may not be conferred by consent or agreement of the parties.The lack of jurisdiction of a court may be raised at any stage of the proceedings, even on appeal.This doctrine has been qualified by recent pronouncements which stemmed principally from the ruling in the cited case of[Tijam].It is to be regretted, however, that the holding in said case had been applied to situations which were obviously not contemplated therein.The exceptional circumstance involved in [Tijam] which justified the departure from the accepted concept of non-waivability of objection to jurisdiction has been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed ruling in [Tijam] not as the exception, but rather the general rule, virtually overthrowing altogether the time-honored principle that the issue of jurisdiction is not lost by waiver or byestoppel.InTijam, the lack of jurisdiction was raised for the first time in a motion to dismiss filed almostfifteen (15) yearsafter the questioned ruling had been rendered.Hence, the Court ruled that the issue of jurisdiction may no longer be raised for being barred by laches.The circumstances of the present case are different fromTijam.Spouses Vargas raised the issue of jurisdiction before the trial court rendered its decision.They continued to raise the issue in their appeal before the Court of Appeals and this Court.Hence, it cannot be said that laches has set in.The exception inTijamfinds no application in this case and the general rule must apply, that the question of jurisdiction of a court may be raised at any stage of the proceedings.Spouses Vargas are therefore not estopped from questioning the jurisdiction of the trial court.[17]The exhortations of this Court in the above-cited case have constrained us to look more closely into the nature of the participation of the movants in the proceedings, to determine whether the exceptional principle of estoppel may be applied against them.The records show that the very first pleading filed by the Lu Ym father and sons before the courta quowas a motion to dismiss, albeit anchored on the ground of insufficiency of the certificate of non-forum shopping and failure of the plaintiffs to exert efforts towards a compromise.When the trial court denied this, they went up to the CA oncertiorari,where they were sustained and the appellate court ordered the dismissal of the complaint below.Next, the Lu Ym father and sons filed a motion for the lifting of the receivership order, which the trial court had issued in the interim.David, et al., brought the matter up to the CA even before the trial court could resolve the motion.Thereafter, David, et al., filed their Motion to Admit Complaint to Conform to the Interim Rules Governing Intra-Corporate Controversies.It was at this point that the Lu Ym father and sons raised the question of the amount of filing fees paid.They raised this point again in the CA when they appealed the trial courts decision in the case below.We find that, in the circumstances, the Lu Ym father and sons are not estopped from challenging the jurisdiction of the trial court.They raised the insufficiency of the docket fees before the trial court rendered judgment and continuously maintained their position even on appeal to the CA.Although the manner of challenge was erroneous they should have addressed this issue directly to the trial court instead of to the OCA they should not be deemed to have waived their right to assail the jurisdiction of the trial court.The matter of lack of jurisdiction of the trial court is one that may be raised at any stage of the proceedings.More importantly, this Court may pass upon this issuemotu proprio.Hence, notwithstanding that the petition in G.R. No. 170889 is a special civil action forcertiorariand prohibition assailing an interlocutory resolution of the CA, we have the power to order the dismissal of the complaint filed in the court of origin and render all incidents herein moot and academic.With the foregoing findings, there is no more need to discuss the other arguments raised in the Motion for Reconsideration.In summary, the trial court did not acquire jurisdiction over the case for failure of David, et.al. to pay the correct docket fees.Consequently, all interlocutory matters pending before this Court, specifically the incidents subject of these three consolidated petitions, must be denied for being moot and academic.With the dismissal of the main action, the ancillary motions have no more leg to stand on.WHEREFORE,in view of the foregoing, the Motion for Reconsideration filed by John Lu Ym and Ludo & LuYm Development Corporation isGRANTED.The Decision of this Court datedAugust 26, 2008isRECONSIDERED and SET ASIDE.The complaint inSRC Case No. 021-CEB, now on appeal with the Court of Appeals in CA G.R. CV No. 81163, isDISMISSED.All interlocutory matters challenged in these consolidated petitions areDENIEDfor being moot and academic.SO ORDERED.

G.R. No. 208976, October 13, 2014THE HONORABLE OFFICE OF THE OMBUDSMAN,Petitioner,v.LEOVIGILDO DELOS REYES, JR.Respondent.R E S O L U T I O NLEONEN,J.:This resolves the petition for review oncertiorariunder Rule 45 of the Rules of Court, assailing the Court of Appeals' decision1dated March 1, 2013, which set aside the Office of the Ombudsman's decision and order in OMB-C-A-04-0309-G finding respondent Leovigildo Delos Reyes, Jr. guilty of grave misconduct and gross neglect of duty,2and order dated August 29, 2013, which denied petitioner Office of the Ombudsman's motion for reconsideration.

The facts as summarized by the Court of Appeals are as follows:

To generate more funds in line with its mandate, the Philippine Charity Sweepstakes Office (PCSO) maintains On-line Lottery Terminals in its main office and in provincial district offices. The Marketing and On-line Division of PCSO's Central Operations Department (COD) manages the terminals in the main office under Agency Number 14-5005-1.3Respondent Leovigildo Delos Reyes, Jr. (Delos Reyes) served as the COD Division Chief.4

On June 13, 2001, PCSO auditors submitted a consolidated report based on a surprise audit conducted on June 5, 2001.5The auditors found that the cash and cash items under Delos Reyes' control were in order.6However, the auditors recommended that the lotto proceeds be deposited in a bank the next working day instead of Delos Reyes keeping the lotto sales and proceeds in a safe inside his office.7

On June 5, 2002, COD Manager Josefma Lao instructed OIC-Division Chief of the Liaison and Accounts Management Division Teresa Nucup (Nucup) to conduct an account validation and verification to reconcile accounts due to substantial outstanding balances as of May 31, 2002.8On August 16, 2002, Nucup reported that Agency No. 14-5005-1 had unremitted collections in the amount of P428,349.00 from May 21, 2001 to June 3, 2001.9The amount was subsequently reduced to P387,879.00 excluding penalties.10

Nucup also found that "there was a deliberate delay in the submission of the periodic sales report; that the partial remittance of total sales were made to cover previous collections; and that the unremitted collections were attributed to Cesar Lara, Cynthia Roldan, Catalino Alexandre Galang, Jr., who were all employed by [PCSO] as Lottery Operations Assistants II, and Elizabeth Driz, the Assistant Division Chief."11

After conducting its own investigation, the PCSO Legal Department recommended filing formal charges against Delos Reyes and Elizabeth Driz (Driz) for dishonesty and gross neglect of duty. The PCSO Legal Department found that the Lottery Operations Assistants turned over the lotto proceeds and lotto ticket sales reports to Delos Reyes as the Division Chief. In case of his absence, the proceeds and reports were turned over to Driz.12Driz would then deposit the proceeds in the bank. If both Delos Reyes and Driz were absent, the proceeds would be placed in the vault under Delos Reyes' control and deposited the next banking day.13

On May 14, 2003, formal charges were filed against Delos Reyes and Driz, with the cases docketed as Administrative Case Nos. 03-01 and 03-02, respectively.14Delos Reyes and Driz were preventively suspended for 90 days.15

On June 8, 2004, PCSO filed an affidavit-complaint with the Office of the Ombudsman.16Delos Reyes and Driz were criminally charged with malversation of public funds or property under Article 217 of the Revised Penal Code, and administratively charged with dishonesty and gross neglect of duty under Section 46(b)(l) and