EX POST FACTO LAWS & BILL OF ATTAINDER
A. Ex post Facto Laws
1. UPREME COURT OF THE UNITED STATES
CARMELL v. TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, SECOND
DISTRICT
No. 987540. Argued November 30, 1999Decided May 1, 2000
In 1996, petitioner was convicted on 15 counts of
committing sexual offenses against his
stepdaughter from 1991 to 1995, when she was 12
to 16 years old. Before September 1, 1993, Tex.
Code Crim. Proc. Ann., Art. 38.07, specified that
a victims testimony about a sexual offense could
not support a conviction unless corroborated by
other evidence or the victim informed another
person of the offense within six months of its
occurrence, but that, if a victim was under 14 at
the time of the offense, the victims testimony
alone could support a conviction. A 1993
amendment allowed the victims testimony alone
to support a conviction if the victim was under 18.
The validity of four of petitioners convictions
depends on which version of the law applies to
him. Before the Texas Court of Appeals, he
argued that the four convictions could not stand
under the pre-1993 version of the law, which was
in effect at the time of his alleged conduct,
because they were based solely on the testimony
of the victim, who was not under 14 at the time of
the offenses and had not made a timely outcry.
The court held that applying the 1993 amendment
retrospectively did not violate theEx Post
Facto Clause, and the State Court of Criminal
Appeals denied review.
Held: Petitioners convictions on the counts at
issue, insofar as they are not corroborated by
other evidence, cannot be sustained under the Ex
Post Facto Clause. Pp. 640.
(a) In Calder v. Bull, 3 Dall. 386, 390, Justice
Chase stated that the proscription against ex post
facto laws was derived from English common law
well known to the Framers, and set out four
categories of ex post factocriminal laws: 1st.
Every law that makes an action done before the
passing of the law, and which wasinnocent when
done, criminal; and punishes such action. 2d.
Every law that aggravates a crime, or makes
itgreater than it was, when committed. 3d. Every
law that changes the punishment, and inflicts
a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters
the legal rules of evidence, and receives less, or
different, testimony, than the law required at the
time of the commission of the offence, in order to
convict the offender. The Court has repeatedly
endorsed this understanding, including the fourth
category. Both Justice Chase and the common-
law treatise on which he drew heavily cited the
case of Sir John Fenwick as an example of the
fourth category. England charged Fenwick with
high treason in the late 17th century, but, under an
Act of Parliament, he could not be convicted
without the testimony of two witnesses.
Parliament passed a bill of attainder making the
two-witness rule inapplicable, and Fenwick was
convicted on the testimony of only one witness.
Pp. 615.
(b) Article 38.07 plainly fits within Calders
fourth category. Requiring only the victims
testimony to convict, rather than that testimony
plus corroborating evidence, is surely less
testimony required to convict in any
straightforward sense of those words. Indeed, the
circumstances here parallel those of Fenwicks
case. That Article 38.07 neither increases the
punishment for, nor changes the elements of, the
offense simply shows that the amendment does
not fit within Calders first or third categories. Pp.
1517.
(c) The fourth category resonates
harmoniously with one of the principal interests
that the Ex Post FactoClause was designed to
serve, fundamental justice. A law reducing the
quantum of evidence required to convict is as
grossly unfair as retrospectively eliminating an
element of the offense, increasing punishment for
an existing offense, or lowering the burden of
proof. In each instance, the government refuses,
after the fact, to play by its own rules, altering
them in a way that is advantageous only to the
State, to facilitate an easier conviction. There is
plainly a fundamental fairness interest in having
the government abide by the rules of law it
establishes to govern the circumstances under
which it can deprive a person of his or her liberty
or life. Indeed, Fenwicks case itself illustrates
this principle. Pp. 1720.
(d) None of the reasons that the United States
as amicus advances for abandoning the fourth
category is persuasive. It asserts that the fact that
neither Blackstone nor ex post facto clauses in
Ratification-era state constitutions mention the
fourth category shows that Justice Chase simply
got it wrong. Accepting this assertion would
require the Court to abandon the third category as
well, for it is also not mentioned in any of those
sources. And it does not follow from the fact that
Fenwick was convicted by a bill of attainder that
his case cannot also be an example of an ex post
facto law. In fact, all of the specific examples that
Justice Chase listed in Calder were passed as bills
of attainder. Nor, as the United States and Texas
argue, was the fourth category effectively cast out
in Collins v. Youngblood, 497 U.S. 37, which
actually held that it was a mistake to stray beyond
Calders four categories, not that the fourth
category was itself mistaken. Pp. 2025.
(e) Texas additional argument that the fourth
category is limited to laws that retrospectively
alter the burden of proof is also rejected. The
Courts decision in Cummings v. Missouri, 4
Wall. 277, nowhere suggests that a reversal of the
burden of proof is all the fourth category
encompasses; and laws that lower the burden of
proof and laws that reduce the quantum of
evidence necessary to meet that burden are
indistinguishable in all meaningful ways relevant
to concerns of the Ex Post Facto Clause. Texas
assertion that Fenwicks case concerns only a
reduction in the burden of proof is based on a
mistaken historical premise. And its argument that
the present case is controlled by Hopt v. Territory
of Utah, 110 U.S. 574,
and Thompson v. Missouri, 171 U.S. 380, is also
unpersuasive. Unlike the witness competency
rules at issue there, Article 38.07 is a sufficiency
of the evidence rule. It does not merely regulate
the mode in which the facts constituting guilt may
be placed before the jury, but governs the
sufficiency of those facts for meeting the burden
of proof.
Indeed, Hopt expressly distinguished witness
competency laws from laws altering the amount
or degree of proof needed for conviction.
Moreover, a sufficiency of the evidence rule
resonates with the interests to which the Ex Post
Facto Clause is addressed, in particular the
elements of unfairness and injustice in subverting
the presumption of innocence. Pp. 2639.
EX POST FACTO LAWS & BILL OF ATTAINDER
2. Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-19328 December 22, 1989
ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK,
plaintiffs-appellants,
vs.
THE SOLICITOR GENERAL, EPIFANIO VILLEGAS, ARTURO
XAVIER, PONCIANO FERNANDO, ROSENDO DOMINGO and
LEONARDO LUCENA, defendants-appellees.
G.R. No. L-19329 December 22, 1989
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALEJANDRO KATIGBAK and MERCEDES K.
KATIGBAK defendants-appellants.
Augusto Kalaw for plaintiffs-appellants.
NARVASA, J.:
These cases were certified to this Court by the Court of Appeals for
resolution on appeal, 1 since the central issue involved is the constitutionality
of Republic Act No. 1379, "An Act Declaring Forfeiture in Favor of the State
of Any Property Found To Have Been Unlawfully Acquired by Any Public
Officer or Employee and Providing for the Proceedings Therefor. 2As posed
by the referral resolution, 3 the question is whether or not said statute.
...en cuanto autoriza la confiscacion en favor del Estado de
las propiedades ilegalmente adquiridas por un funcionario o
empleado del Gobierno antes de la aprobacion de la ley ... es
nula y anti-constitutional porque:
(a) es una Ley ex-post facto que autoriza la
confiscacion de una propiedad privada
adquirida antes de la aprobacion de la ley y
obliga el funcionario o empleado publico a
explicar como adquirio sus propiedades
privadas, compeliendo de esta forma a
incriminarse a si mismo, y en cierto modo
autoriza la confiscacion de dicha propiedad
sin debido proceso de la ley; y
(b) porque autoriza la confiscacion de
inmuebles previamente hipotecados de
buena fe a una persona.
The proceedings at bar originated from two (2) actions filed with the Court of
First Instance of Manila.
The first was Civil Case No. 30823, instituted by the Spouses Alejandro
Katigbak and Mercedes Katigbak. In their complaint they prayed that: (1) the
Solicitor General be enjoined from filing a complaint against them for
forfeiture of property under the above mentioned R.A. No. 1379; (2) said
statute be declared unconstitutional in so far as it authorizes forfeiture of
properties acquired before its approval, or, alternatively, a new preliminary
investigation of the complaint filed against Alejandro Katigbak by NBI
officers be ordered; (3) properties acquired by Alejandro Katigbak when he
was out of the government service be excluded from forfeiture proceedings;
and (4) the NBI officers and the Investigating Prosecutor (Leonardo Lucena)
be sentenced to pay damages.
The second action was Civil Case No. 31080, commenced by petition 4 filed
by the Republic of the Philippines against Alejandro Katigbak, his wife,
Mercedes, and his son, Benedicto, seeking the forfeiture in favor of the State
of the properties of Alejandro Katigbak allegedly gotten by him illegally, in
accordance with R.A. No. 1379. Said properties were allegedly acquired
while Katigbak was holding various positions in the government, the last
being that of an examiner of the Bureau of Customs; and title to some of the
properties were supposedly recorded in the names of his wife and/or son.
The cases were jointly tried. The judgment thereafter rendered 5 (1)
dismissed the complaint and the counterclaim in Civil Case No. 30823, the
first action; and (2) as regards Civil Case No. 31080, ordered "that from the
properties (of Katigbak) enumerated in this decision as acquired in
1953,1954 and 1955, shall be enforced a lien in favor of the Government in
the sum of P100,000.00. 6 The judgment also declared that the "impatience of
the Investigating Prosecutor" during the preliminary inquiry into the charges
filed against Katigbak for violation of R.A. No. 1379 did not amount to such
arbitrariness as would justify annulment of the proceedings since, after all,
Katigbak was able to fully ventilate his side of the case in the trial
court; 7 that R.A. No. 1379 is not penal in nature, its objective not being the
enforcement of a penal liability but the recovery of property held under an
implied trust; 8 that with respect to things acquired through delicts,
prescription does not run in favor of the offender; 9 that Alejandro Katigbak
may not be deemed to have been compelled to testify against his will since
he took the witness stand voluntarily. 10 The Katigbaks moved for
reconsideration and/or new trial. The Trial Court refused to grant a new trial
but modified its decision by reducing the amount of "P 100,000.00 in the
dispositive portion ... to P80,000.00." 11
Appeal was taken from this verdict of the Court of Appeals by the Katigbaks
which appeal, as earlier stated, was certified to this Court.
No less than 18 errors have been attributed by the Katigbaks to the Court a
quo. 12 They concern mainly the character of R.A. No. 1379 as an ex-post
facto law, principally because it imposes the penalty of forfeiture on a public
officer or employee acquiring properties allegedly in violation of said R.A.
No. 1379 at a time when that law had not yet been enacted.13
Whatever persuasiveness might have been carried by the ruling on the issue
of the learned Trial Judge in 1961, the fact is that the nature of R.A. No.
1379 as penal was in 1962 clearly and categorically pronounced by this
Court inCabal v. Kapunan, Jr. 14 Citing voluminous authorities, the Court in
that case declared that "forfeiture to the State of property of a public officer
or employee which is manifestly out of proportion to his salary as such ... and
his other lawful income and the income from legitimately acquired property
... has been held ... to partake of the nature of a penalty"; and that
"proceedings for forfeiture of property although technically civil in form are
deemed criminal or penal, and, hence, the exemption of defendants in
criminal cases from the obligation to be witnesses against, themselves is
applicable thereto. 15The doctrine was reaffirmed and reiterated in 1971
in republic v. Agoncillo. 16 And germane is the 1977 ruling of the Court inde
la Cruz v. Better Living, Inc. 17 involving among others the issue of the
validity and enforceability of a written agreement alleged to be in violation
of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices-Act to the effect that "the provisions of said law cannot be given
retro active effect."
The forfeiture of property provided for in Republic Act No. 1379 being in the
nature of a penalty; and it being axiomatic that a law is ex-post facto
which inter alia "makes criminal an act done before the passage of the law
and which was innocent when done, and punishes such an act," or, "assuming
to regulate civil rights and remedies only, in effect imposes a penalty or
deprivation of a right for something which when done was lawful," it follows
that penalty of forfeiture prescribed by R.A. No. 1379 cannot be applied to
acquisitions made prior to its passage without running afoul of the
Constitutional provision condemning ex post facto laws or bills of
attainder. 18 But this is precisely what has been done in the case of the
Katigbaks. The Trial Court declared certain of their acquisitions in 1953,
1954 and 1955 to be illegal under R.A. No. 1379 although made prior to the
enactment of the law, and imposed a lien thereon "in favor of the
Government in the sum of P100,000.00." Such a disposition is, quite
obviously, constitutionally impermissible.
As to the issue of whether or not the Prosecuting Fiscal, Leonardo Lucena,
should be made answerable for damages because the filing of the forfeiture
proceedings, Civil Case No. 31080, resulted from a preliminary investigation
which was allegedly conducted by Fiscal Lucena in an arbitrary and
highhanded manner, suffice it to state that the trial court found no proof of
any intention to persecute or other ill motive underlying the institution of
Civil Case No. 31080. The trial court further found that during the
preliminary investigation by Fiscal Lucena on September 13, 19, 24, 25 and
26, 1956, Alejandro Katigbak was assisted by reputable and competent
counsel, Atty. Estanislao A. Fernandez and Atty. Antonio Carag. The mere
fact that the preliminary investigation was terminated against the objection of
Katigbak's counsel, does not necessarily signify that he was denied the right
to such an investigation. What is more, the Trial Court's factual conclusion
that no malice or bad faith attended the acts of public respondents
complained of, and consequently no award of damages is proper, cannot
under established rule be reviewed by this Court absent any showing of the
existence of some recognized exception thereto.
The foregoing pronouncements make unnecessary the determination of the
other issues.
WHEREFORE, the judgment of the Court a quo, in so far as it pronounces
the acquisitions of property by the appellants illegal in accordance with
Republic Act No. 1379 and imposes a lien thereon in favor of the
Government in the sum of P80,000.00 is hereby REVERSED AND SET
ASIDE, but is AFFIRMED in all other respects. No pronouncement as to
costs.
SO ORDERED.
EX POST FACTO LAWS & BILL OF ATTAINDER
3. THIRD DIVISION
ORLANDO L. SALVADOR, for and in behalf of the
Presidential Ad Hoc Fact-Finding Committee on
Behest Loans,
Petitioner,
- versus -
PLACIDO L. MAPA, JR., RAFAEL A. SISON,
ROLANDO M. ZOSA, CESAR C. ZALAMEA,
BENJAMIN BAROT, CASIMIRO TANEDO, J.V.
DE OCAMPO, ALICIA L. REYES, BIENVENIDO R.
TANTOCO, JR., BIENVENIDO R. TANTOCO, SR., Acting C.J., Chairperson,
FRANCIS B. BANES, ERNESTO M. CARINGAL,
ROMEO V. JACINTO, and MANUEL D.
TANGLAO,
Respondents.
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
G.R. No. 135080
The Presidential Ad Hoc Fact-Finding Committee on Behest Loans, (the
Committee), through Atty. Orlando L. Salvador (Atty. Salvador), filed this
Petition for Review on Certiorari seeking to nullify the October 9, 1997
Resolution[1] of the Office of the Ombudsman in OMB-0-96-2428,
dismissing the criminal complaint against respondents on ground of
prescription, and the July 27, 1998 Order[2] denying petitioners motion for
reconsideration.
On October 8, 1992 then President Fidel V. Ramos issued
Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding
Present: Committee on Behest Loans, which reads:
YNARES-SANTIAGO, WHEREAS, Sec. 28, Article II of the 1987
Constitution provides that Subject to reasonable conditions
prescribed by law, the State adopts and implements a policy
AUSTRIA-MARTINEZ, of full public disclosure of all its transactions involving
public interest;
CHICO-NAZARIO,
NACHURA, and
WHEREAS, Sec. 15, Article XI of the 1987
REYES, JJ. Constitution provides that The right of the state to recover
properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees,
shall not be barred by prescription, laches or estoppel;
Promulgated:
WHEREAS, there have been allegations of loans,
November 28, 2007
guarantees, and other forms of financial accommodations
granted, directly or indirectly, by government-owned and
controlled bank or financial institutions, at the behest,
command, or urging by previous government officials to the
disadvantage and detriment of the Philippines government
and the Filipino people;
 ACCORDINGLY, an Ad-Hoc FACT FINDING
COMMITTEE ON BEHEST LOANS is hereby created to be
composed of the following:
Chairman of the Presidential
Commission on Good Government - Chairman
The Solicitor General - Vice-Chairman
Representative from the
Office of the Executive Secretary - Member
functions:
Representative from the
1.
Department of Finance - Member
Representative from the
Department of Justice - Member
2.
Representative from the
Development Bank of the Philippines - Member
3.
Representative from the
Philippine National Bank - Member
Representative from the
Asset Privatization Trust - Member
Government Corporate Counsel - Member
Representative from the
Philippine Export and Foreign
Loan Guarantee Corporation - Member
The Ad Hoc Committee shall perform the following
Inventory all behest loans; identify the lenders and
borrowers, including the principal officers and
stockholders of the borrowing firms, as well as the
persons responsible for granting the loans or who
influenced the grant thereof;
Identify the borrowers who were granted friendly
waivers, as well as the government officials who
granted these waivers; determine the validity of
these waivers;
Determine the courses of action that the
government should take to recover those loans, and
to recommend appropriate actions to the Office of
the President within sixty (60) days from the date
hereof.
 The Committee is hereby empowered to call upon any
department, bureau, office, agency, instrumentality or
corporation of the government, or any officer or employee 1. It is under-collateralized;
thereof, for such assistance as it may need in the discharge of
its functions.[3]
2. The borrower corporation is
undercapitalized;

By Memorandum Order No. 61 dated November 9, 1992, the

functions of the Committee were subsequently expanded, viz.: 3. Direct or indirect endorsement by high
government officials like presence of
marginal notes;

WHEREAS, among the underlying purposes for the

creation of the Ad Hoc Fact-Finding Committee on Behest
Loans is to facilitate the collection and recovery of defaulted 4. Stockholders, officers or agents of the
loans owing government-owned and controlled banking borrower corporation are identified as
and/or financing institutions; cronies;

WHEREAS, this end may be better served by 5. Deviation of use of loan proceeds from the
broadening the scope of the fact-finding mission of the purpose intended;
Committee to include all non-performing loans which shall
embrace behest and non-behest loans;
6. Use of corporate layering;

NOW THEREFORE, I, FIDEL V. RAMOS,

President of the Republic of the Philippines, by virtue of the 7. Non-feasibility of the project for which
power vested in me by law, do hereby order: financing is being sought; and

Sec. 1. The Ad Hoc Fact-Finding Committee on
Behest Loans shall include in its investigation, inventory,
and study, all non-performing loans which shall embrace
both behest and non-behest loans:
The following criteria may be utilized as a frame of
reference in determining a behest loan:
8. Extraordinary speed in which the loan
release was made.
Moreover, a behest loan may be distinguished from
a non-behest loan in that while both may involve civil
liability for non-payment or non-recovery, the former may
likewise entail criminal liability.[4]

Several loan accounts were referred to the Committee for
investigation, including the loan transactions between Metals Exploration
Asia, Inc. (MEA), now Philippine Eagle Mines, Inc. (PEMI) and the
Development Bank of the Philippines (DBP).
After examining and studying the documents relative to the loan
transactions, the Committee determined that they bore the characteristics of
behest loans, as defined under Memorandum Order No. 61 because the
stockholders and officers of PEMI were known cronies of then President
Ferdinand Marcos; the loan was under-collateralized; and PEMI was
undercapitalized at the time the loan was granted.
Specifically, the investigation revealed that in 1978, PEMI applied
for a foreign currency loan and bank investment on its preferred shares with
DBP. The loan application was approved onApril 25, 1979 per Board
Resolution (B/R) No. 1297, but the loan was never released because PEMI
failed to comply with the conditions imposed by DBP. To accommodate
PEMI, DBP subsequently adopted B/R No. 2315 dated June 1980, amending
B/R No. 1297, authorizing the release of PEMIs foreign currency loan
proceeds, and even increasing the same. Per B/R No. 95 datedOctober 16,
1980, PEMI was granted a foreign currency loan of $19,680,267.00
or P146,601,979.00, and it was released despite non-compliance with the
conditions imposed by DBP. The Committee claimed that the loan had no
sufficient collaterals and PEMI had no sufficient capital at that time because
its acquired assets were only valued at P72,045,700.00, and its paid up
capital was only P46,488,834.00.
Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-
Finding Committee, and representing the Presidential Commission on Good
Government (PCGG), filed with the Office of the Ombudsman
(Ombudsman) a sworn complaint for violation of Sections 3(e) and (g) of
Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, against
the respondents Placido I. Mapa, Jr., Rafael A. Sison; Rolando M. Zosa;
Cesar C. Zalamea; Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo,
Bienvenido R. Tantoco, Jr., Francis B. Banes, Ernesto M. Caringal, Romeo
V. Jacinto, Manuel D. Tanglao and Alicia Ll. Reyes.[5]
After considering the Committees allegation, the Ombudsman
handed down the assailed Resolution,[6] dismissing the complaint. The
Ombudsman conceded that there was ground to proceed with the conduct of
preliminary investigation. Nonetheless, it dismissed the complaint holding
that the offenses charged had already prescribed, viz.:
[W]hile apparently, PEMI was undercapitalized at
the time the subject loans were entered into; the financial
accommodations were undercollateralized at the time they
were granted; the stockholders and officers of the borrower
corporation are identified cronies of then President Marcos;
and the release of the said loans was made despite non-
compliance by PEMI of the conditions attached therewith,
which consequently give a semblance that the subject
Foreign Currency Loans are indeed Behest Loans, the
prosecution of the offenses charged cannot, at this point,
prosper on grounds of prescription.
It bears to stress that Section 11 of R.A. No. 3019 as
originally enacted, provides that the prescriptive period for
violations of the said Act (R.A. 3019) is ten (10)
years. Subsequently, BP 195, enacted onMarch 16, 1982,
amended the period of prescription from ten (10) years to
fifteen (15) years
Moreover as enunciated in [the] case of People vs.
Sandiganbayan, 211 SCRA 241, the computation of the
prescriptive period of a crime violating a special law like
R.A. 3019 is governed by Act No. 3326 which provides,
thus:
 xxxx
Section 2. Prescription shall begin to
run from the day of the commission of the
violation of law, and if the same be not
known at the time, from the discovery
thereof and the institution of the judicial
proceedings for its investigation and
punishment.
The prescription shall be interrupted
when the proceedings are instituted against
the guilty person, and shall begin to run
again if the proceedings are dismissed for
reasons not constituting jeopardy.
Corollary thereto, the Supreme Court in the case of
People vs. Dinsay, C.A. 40 O.G. 12th Supp., 50, ruled that
when there is nothing which was concealed or needed to be
discovered because the entire series of transactions were by
public instruments, the period of prescription commenced to
run from the date the said instrument were executed.
The aforesaid principle was further elucidated in the
cases of People vs. Sandiganbayan, 211 SCRA 241, 1992,
and People vs. Villalon, 192 SCRA 521, 1990, where the
Supreme Court pronounced that when the transactions are
contained in public documents and the execution thereof
gave rise to unlawful acts, the violation of the law
commences therefrom. Thus, the reckoning period for
purposes of prescription shall begin to run from the time the
public instruments came into existence.
In the case at bar, the subject financial
accommodations were entered into by virtue of public
documents (e.g., notarized contracts, board resolutions,
approved letter-request) during the period of 1978 to 1981
and for purposes of computing the prescriptive period, the
aforementioned principles in the Dinsay, Villalon and
Sandiganbayan cases will apply. Records show that the
complaint was referred and filed with this Office on October
4, 1996 or after the lapse of more than fifteen (15) years
from the violation of the law. [Deductibly] therefore, the
offenses charged had already prescribed or forever barred by
Statute of Limitations.
It bears mention that the acts complained of were
committed before the issuance of BP 195 on March 2,
1982. Hence, the prescriptive period in the instant case is ten
(10) years as provided in the (sic) Section 11 of R.A. 3019,
as originally enacted.
Equally important to stress is that the subject
financial transactions between 1978 and 1981 transpired at
the time when there was yet no Presidential Order or
Directive naming, classifying or categorizing them as Behest
or Non-Behest Loans.
To reiterate, the Presidential Ad Hoc Committee on
Behest Loans was created on October 8, 1992 under
Administrative Order No. 13. Subsequently, Memorandum
Order No. 61, dated November 9, 1992, was issued defining
the criteria to be utilized as a frame of reference in
determining behest loans. Accordingly, if these Orders are to
be considered the bases of charging respondents for alleged
offenses committed, they become ex-post facto laws which
are proscribed by the Constitution. The Supreme Court in the
case of People v. Sandiganbayan, supra, citing Wilensky V.
Fields, Fla, 267 So 2dl, 5, held that an ex-post facto law is
defined as a law which provides for infliction of punishment
 upon a person for an act done which when it was committed,
was innocent.[7]
Thus, the Ombudsman disposed:
WHEREFORE, premises considered, it is hereby
respectfully recommended that the instant case be
DISMISSED.
SO RESOLVED.[8]
The Committee filed a Motion for Reconsideration, but the Ombudsman
denied it on July 27, 1998.
Hence, this petition positing these issues:
A. WHETHER OR NOT THE CRIME DEFINED BY SEC.
3(e) AND (g) OF R.A. 3019 HAS ALREADY
PRESCRIBED AT THE TIME THE PETITIONER
FILED ITS COMPLAINT.
B. WHETHER OR NOT ADMINISTRATIVE ORDER NO.
13 AND MEMORANDUM ORDER NO. 61
ARE EX-POST FACTO LAW[S].[9]
The Court shall deal first with the procedural issue.
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and
Caringal argued that the petition suffers from a procedural infirmity which
warrants its dismissal. They claimed that the PCGG availed of the wrong
remedy in elevating the case to this Court.
Indeed, what was filed before this Court is a petition captioned
as Petition for Review on Certiorari. We have ruled, time and again, that a
petition for review on certiorari is not the proper mode by which resolutions
of the Ombudsman in preliminary investigations of criminal cases are
reviewed by this Court. The remedy from the adverse resolution of the
Ombudsman is a petition forcertiorari under Rule 65,[10] not a petition for
review on certiorari under Rule 45.
However, though captioned as a Petition for Review on Certiorari, we will
treat this petition as one filed under Rule 65 since a reading of its contents
reveals that petitioner imputes grave abuse of discretion to the Ombudsman
for dismissing the complaint. The averments in the complaint, not
the nomenclature given by the parties, determine the nature of the
action.[11] In previous rulings, we have treated differently labeled actions as
special civil actions for certiorari under Rule 65 for reasons such as justice,
equity, and fair play.[12]
Having resolved the procedural issue, we proceed to the merits of the case.
As the Committee puts it, the issues to be resolved are: (i) whether or
not the offenses subject of its criminal complaint have prescribed, and (ii)
whether Administrative Order No. 13 and Memorandum Order No. 61 are ex
post facto laws.
The issue of prescription has long been settled by this Court
in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto,[13] thus:
[I]t is well-nigh impossible for the State, the
aggrieved party, to have known the violations of R.A. No.
 3019 at the time the questioned transactions were made
because, as alleged, the public officials concerned connived
or conspired with the beneficiaries of the loans. Thus, we
agree with the COMMITTEE that the prescriptive period for
the offenses with which the respondents in OMB-0-96-0968
were charged should be computed from the discovery of the
commission thereof and not from the day of such
commission.[14]
The ruling was reiterated in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Ombudsman Desierto,[15] wherein the Court explained:
In cases involving violations of R.A. No. 3019
committed prior to the February 1986 EDSA Revolution that
ousted President Ferdinand E. Marcos, we ruled that the
government as the aggrieved party could not have known of
the violations at the time the questioned transactions were
made. Moreover, no person would have dared to question the
legality of those transactions. Thus, the counting of the
prescriptive period commenced from the date of discovery of
the offense in 1992 after an exhaustive investigation by the
Presidential Ad Hoc Committee on Behest Loans.[16]
This is now a well-settled doctrine which the Court has applied in subsequent
cases involving the PCGG and the Ombudsman.[17]
Since the prescriptive period commenced to run on the date of the
discovery of the offenses, and since discovery could not have been made
earlier than October 8, 1992, the date when the Committee was created, the
criminal offenses allegedly committed by the respondents had not yet
prescribed when the complaint was filed on October 4, 1996.
Even the Ombudsman, in its Manifestation & Motion (In Lieu of
Comment),[18] conceded that the prescriptive period commenced from the
date the Committee discovered the crime, and not from the date the loan
documents were registered with the Register of Deeds. As a matter of fact, it
requested that the record of the case be referred back to the Ombudsman for
a proper evaluation of its merit.
Likewise, we cannot sustain the Ombudsmans declaration that
Administrative Order No. 13 and Memorandum Order No. 61 violate the
prohibition against ex post facto laws for ostensibly inflicting punishment
upon a person for an act done prior to their issuance and which was innocent
when done.
The constitutionality of laws is presumed. To justify nullification of
a law, there must be a clear and unequivocal breach of the Constitution, not a
doubtful or arguable implication; a law shall not be declared invalid unless
the conflict with the Constitution is clear beyond reasonable doubt. The
presumption is always in favor of constitutionality. To doubt is to
sustain.[19] Even this Court does not decide a question of constitutional
dimension, unless that question is properly raised and presented in an
appropriate case and is necessary to a determination of the case, i.e., the issue
of constitutionality must be the very lis mota presented.[20]
Furthermore, in Estarija v. Ranada,[21] where the petitioner raised the
issue of constitutionality of Republic Act No. 6770 in his motion for
reconsideration of the Ombudsmans decision, we had occasion to state that
the Ombudsman had no jurisdiction to entertain questions on the
constitutionality of a law. The Ombudsman, therefore, acted in excess of its
jurisdiction in declaring unconstitutional the subject administrative and
memorandum orders.
In any event, we hold that Administrative Order No. 13 and
Memorandum Order No. 61 are not ex post facto laws.
 prescription, respondents respective defenses were never passed upon during
the preliminary investigation. Thus, the complaint should be referred back to
An ex post facto law has been defined as one (a) which makes an the Ombudsman for proper evaluation of its merit.
action done before the passing of the law and which was innocent when done
criminal, and punishes such action; or (b) which aggravates a crime or makes
it greater than it was when committed; or (c) which changes the punishment
and inflicts a greater punishment than the law annexed to the crime when it WHEREFORE, the petition is GRANTED. The assailed
was committed; or (d) which alters the legal rules of evidence and receives Resolution and Order of the Office of Ombudsman in OMB-0-96-2428,
less or different testimony than the law required at the time of the are SET ASIDE. The Office of the Ombudsman is directed to conduct with
commission of the offense in order to convict the defendant.[22] This Court dispatch an evaluation of the merits of the complaint against the herein
added two (2) more to the list, namely: (e) that which assumes to regulate respondents
civil rights and remedies only but in effect imposes a penalty or deprivation
of a right which when done was lawful; or (f) that which deprives a person
accused of a crime of some lawful protection to which he has become SO ORDERED.
entitled, such as the protection of a former conviction or acquittal, or a
proclamation of amnesty.[23]

The constitutional doctrine that outlaws an ex post facto law

generally prohibits the 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.[24] 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.

One final note. Respondents Mapa and Zalamea, in their respective

comments, moved for the dismissal of the case against them. Mapa claims
that he was granted transactional immunity from all PCGG-initiated
cases,[25] while Zalamea denied participation in the approval of the subject
loans.[26] The arguments advanced by Mapa and Zalamea are matters of
defense which should be raised in their respective counter-affidavits. Since
the Ombudsman erroneously dismissed the complaint on ground of