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:

which makes an action done before the passing of the law and which was innocent when done, criminal, and

punishes such action; or

 which aggravates a crime or makes it greater than it was when committed; or

 which changes the punishment and inflicts a greater punishment than the law annexed to the crime when

it was committed; or

 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.

 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

 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:

 It refers to criminal matters;

 It is retroactive in application; and

 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

Rule on Retroactivity of Laws


As a general rule, laws shall have only a prospective effect and must not be applied
retroactively in such a way as to apply to pending disputes and cases. This is expressed in the
familiar legal maxim lex prospicit, non respicit (the law looks forward and not backward),[1]
and is conformable to Article 4 of the Civil Code. The rule is intended to the tendency of
retroactive legislation to be unjust and oppressive on account of its liability to punish
individuals for violations of laws not yet enacted, unsettle vested rights or disturb the legal
effect of prior transactions[2], which is unconstitutional[3].

The principle of non-retroactivity finds application in various aspects of the legal system. Thus,
the rule is that the jurisdiction of a court depends on the law existing at the time an action is
filed[4]; a statute continues to be in force with regard to all rights that had accrued prior to its
amendment[5]; a new doctrine laid down by the Supreme Court overturning an existing
doctrine is to be applied prospectively, and not to parties relying on the old doctrine and acting
on the faith thereof[6]; and many others.

While in general, laws are prospective, they are retroactive in the following instances:

1. If the law itself provides for retroactivity (Art. 4, Civil Code), but in no case may an ex post
facto law be passed, such as one that criminalizes an act done before the passing of the law and
which was innocent when done[7]. A law is considered retroactivity if it is clearly expressed in
the language of the statute[8]. The existence of an effectivity clause defining when the law
shall take effect militates conclusively against the retroactivity of such law[9].
2. If the law is remedial in nature, since there are no vested rights in rules of procedure[10].
3. If the statute is penal in nature, provided it is favorable to the accused/convict and the latter
is not a habitual delinquent as defined under the Revised Penal Code[11].
4. If the law is of an emergency nature and are authorized by the police power of the
government[12].
5. If the law is curative, provided it does not impair vested rights nor affect final
judgments[13].
6. If a substantive right is to be declared for the first time, unless vested rights are impaired.

Notes:
1. Philippine National Bank v. Tejano, G.R. No. 173615. October 16, 2009.
2. Curata v. Philippine Ports Authority, G.R. Nos. 154211-12, June 22, 2009.
3. Philippine National Bank v. Tejano, G.R. No. 173615. October 16, 2009.
4. PHILIPPINE NATIONAL BANK, petitioner, vs. CAYETANO A. TEJANO, JR.,
respondent.
5. Largardo v. Masaganda, et al. L-17624, June 30, 1962.
6. Buyco v. Philippine National Bnak, L-14406, June 30, 1961.
7. Benzonan v. Court of Appeals, G.R. No. 97973, January 27, 1992.
8. Salvador v. Mapa, G.R. No. 135080, November 28, 2007
9. Philippine National Bank v. Tejano, G.R. No. 173615. October 16, 2009.
10. Manapat v. CA, G.R. No. 110478. 1 October 15, 2007.
11. Heirs of Eduardo Simon v. Chan, G.R. No. 157547, February 23, 2011
12. Article 22, Revised Penal Code.
13. Valencia et al. v. Surtido, L-17277, May 31, 1961.
14. Maternity Children’s Hospital vs Secretary of Labor (174 SCRA 632)
15. Frivaldo v. Comelec, G.R. 120295, June 28, 1996.
16. Bona v. Briones, G.R. No. L-10806, July 6, 1918
 

Art. 5. Acts executed against the provisions of mandatory or prohibitory

laws shall be void, except when the law itself authorizes their validity.

A mandatory law is one which prescribes some element as a requirement (i.e., wills

must be written – Article 804; form of donations – Article 749)

A prohibitory law is one which forbids something (i.e., joint wills – Article 818)

General Rule: Acts which are contrary to mandatory or prohibited laws are void.

Exceptions:

1. When the law itself authorized its validity (i.e., lotto, sweepstakes)

2. When the law makes the act only voidable and not void (i.e., if consent is vitiated,

the contract is voidable and not void)

3. When the law makes the act valid but punishes the violator (i.e., if the marriage is

celebrated by someone without legal authority but the parties are in good faith,

the marriage is valid but the person who married the parties is liable)

4. When the law makes the act void but recognizes legal effects flowing therefrom