What is an ex post facto law?

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

What is an ex post facto law?

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.
5. 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 vs. Mapa, G.R. No. 135080, November 28, 2007)

Characteristics of ex post facto law:

1. It refers to criminal matters; 
2. It is retroactive in application; and 
3. It works to the prejudice of the accused

Cases:

● Ex post facto law, generally, prohibits retrospectivity of penal laws. Penal laws are those 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. (Salvador vs. Mapa)


● The subject administrative and memorandum orders clearly do not come within the shadow of this definition. 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 vs. Mapa)

● R.A. 8249, which defines the jurisdiction of the Sandiganbayan, is not an ex post facto law, because it is not a penal law. Penal laws are those 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. R.A. 8249 is clearly a procedural statute, i.e., one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. The contention that the right of the accused to a two-tiered appeal under R.A. 7975 has been diluted by R.A. 8249 has been rejected by the court several times considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law.  (Lacson vs. Executive Secretary, G.R. No. 128096. January 20, 1999)


●P.D. 1990 is not ex post facto because like the Probation Law that it amends, it is not penal in character, and it applies only to an accused who has been convicted after the effectivity of the P.D. (Fajardo v. Court of Appeals, G.R. No. 128508, February 1, 1999)


● The retroactive application of the Treaty of Extradition (between the Philippines and Australia) does not violate the prohibition against ex post facto laws, because the Treaty is neither a piece of criminal legislation nor a criminal procedural statute; it merely provided for the extradition of persons wanted for offenses already committed at the time the treaty was ratified. (Wright v. Court of Appeals, 235 SCRA 341)


● The Anti-Subversion Act was held not to be an ex post facto law, because the prohibition applied only to acts committed “after the approval of the Act”. (People v. Ferrer, 43 SCRA 381)


● The imposition of back taxes on the property of the petitioner does not violate the constitutional prohibition against ex post facto laws. (Sesbreno v. Central Board of Assessment Appeals, 270 SCRA 360)


● The amendatory law to RA 3019 imposing suspension pendente life of public officers accused of offenses involving fraudulent use of public funds, was held not to be an ex post facto law, because the suspension was not punitive, but merely preventive. (Bayot v. Sandiganbayan, 128 SCRA 383)


● The judge cannot, motu propio, initiate the dismissal and subsequently dismiss a criminal information or complaint without any motion to that effect being filed by the accused based on the alleged violation of the latter’s right against ex post facto law and double jeopardy. Every law carries with it the presumption of constitutionality until otherwise declared by the Supreme Court, and lower courts may not pass upon the constitutionality of a statute or rule nor declare it void unless directly assailed in an appropriate action. Since neither the private respondent nor the Solicitor General challenged the validity of Central Bank Circular No. 960, it was error for the lower court to declare the same ex post facto. (People v. Judge Nitafan, G.R. Nos. 107964-66, February 1, 1999)

Examples of ex post facto law:

●RA 1379, which provides forfeiture in favor of the State of any property illegally obtained by a public officer, partakes the nature of a penalty that is criminal or penal. Hence, it may not be given retroactive effect. (Katigbak vs. Solicitor-General, G.R. No. L-19328, December 22, 1989)

● The provision of BP 195, amending Sec. 11, RA3019 (Anti-Graft and Corrupt Practices Act), which would increase from 10 to 15 years the prescriptive period for the offenses punished therein, cannot be given retroactive effect, as it would then be an ex post facto law. (People v. Sandiganbayan, 211 SCRA 241)


Read:

Fajardo vs. CA Case Digest