U. Ex post facto laws and bills of attainder

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor
No ex post facto law or bill of attainder shall be enacted. (Section 22, Article III, 1987 Constitution)

Frequency: ★★☆☆☆

1. CONCEPT

No ex post facto law or bill of attainder shall be enacted. (Section 22, Article III, 1987 Constitution)

An ex post facto law is one which, among others, aggravates a crime or makes it greater than it was when committed or changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. (Nasi-Villar v. People, G.R. No. 176169, 14 November 2008)

An ex post facto law has been defined as one:

1) Which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or

2) Which aggravates a crime or makes it greater than it was when committed; or

3) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or

4) Which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant; or

5) That which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; or,

6) That which deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Salvador v. Mapa, G.R. No. 135080, 28 November 2007)

A law can never be considered ex post facto as long as it operates prospectively since its strictures would cover only offenses committed after and not before its enactment. (Nasi-Villar v. People, supra.)

a. Applies to penal laws

The constitutional proscription of ex post facto laws is aimed against the retrospectivity of penal laws. Penal laws are acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, En Banc, G.R. No. 145184, 14 March 2008)

Case Law

1) The subject administrative and memorandum orders clearly are not penal laws. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, and provides for its composition and functions. It does not mete out penalty for the act of granting behest loans. Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. There is, therefore, no basis for the Ombudsman to rule that the subject administrative and memorandum orders are ex post facto. (Salvador v. Mapa, Ibid.)

2) The argument that Presidential Decree No. 1606 is an ex-post facto law is without merit because the same is not a penal statute, It merely provides for the transfer of jurisdiction over certain cases where the defendant has not yet been arraigned, from the Court of First Instance (now Regional Trial Court) to the Sandiganbayan. (Alvia v. Sandiganbayan, En Banc, G.R. Nos. L-51923-25, 19 June 1985)

3) Administrative Order No. 13 does not mete out a penalty for the act of granting behest loans. It merely creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans and provides for its composition and functions. Memorandum Order No. 61, on the other hand, simply provides the frame of reference in determining the existence of behest loans. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex-post facto laws. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, supra.)

1) Operation of penal laws

GENERAL RULE: Penal laws and laws which, while not penal in nature, have provisions defining offenses and prescribing penalties for their violation operate prospectively. Penal laws cannot be given retroactive effect. (Nasi-Villar v. People, supra.)

EXCEPTION: … except when they are favorable to the accused. (Ibid.)

2. EXTRADITION TREATY

An extradition treaty does not violate the Constitutional prohibition against ex post facto laws. The Treaty is neither a piece of criminal legislation nor a criminal procedural statute. “It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified.” (Wright v. CA, G.R. No. 113213, 15 August 1994)

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