16 January 2021

For: Sir ECL

From: JMF
Re: Ex post facto law and bills of attainder

EX POST FACTO LAW

The 1987 Constitution of the Philippines categorically prohibits the passing

of any ex post facto law. Article III, Section 22 specifically states:
"No ex post facto law or bill of attainder shall be enacted."

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

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)

Relevant Jurisprudence

There is no violation of the prohibition against ex post facto  law nor

a retroactive application of R.A. No. 8042, as alleged by petitioner. 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.16 Penal laws and laws which, while not penal in nature,
nonetheless have provisions defining offenses and prescribing penalties for
their violation operate prospectively. Penal laws cannot be given retroactive
effect, except when they are favorable to the accused.

R.A. No. 8042 amended pertinent provisions of the Labor Code and
gave a new definition of the crime of illegal recruitment and provided for
its higher penalty. There is no indication in R.A. No. 8042 that said law,
including the penalties provided therein, would take effect retroactively. 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. Neither did the trial court nor the appellate
court give R.A. No. 8042 a retroactive application since both courts passed
upon petitioner's case only under the aegis of the Labor Code. The
proceedings before the trial court and the appellate court did not violate
the prohibition against ex post facto  law nor involved a retroactive
application of R.A. No. 8042 in any way. (Nasi-Villar vs. People, G.R. No.
176169, November 14, 2008)

In effect, this Court held that the aforementioned department order

had no penal character, despite the adverse consequences it may have
upon those who violate the same, for which reason its publication in the
Official Gazette was not essential to impart the binding force. Similarly,
Proclamation No. 601, like tax laws, in general, is not penal in nature.
Indeed, a legislation merely imposing taxes, without strictly penal sanctions
for violations thereof, may have a retrospective operation, without being
an ex post facto law. Hence:

A statute imposing a penalty, computed at a certain per cent per

annum for a five-year period, upon estates of decedents for
nonpayment of taxes during the lifetime of the owner, not being in
punishment of crime, is not invalid as an ex post facto law in so far
as the five-year period antedates the passage of the statute.
(Commissioner of Customs vs. Caltex, G.R. No. L-24192, May 22,
1968)

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)

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 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)

Does the Treaty's retroactive application violate the Constitutional

prohibition against ex post facto laws? Early commentators understood ex
post facto  laws to include all laws of retrospective application, whether civil
or criminal.  However, Chief Justice Salmon P. Chase, citing Blackstone,
The Federalist and other early U.S. state constitutions in Calder
vs. Bull   concluded that the concept was limited only to penal and criminal
statutes. As conceived under our Constitution, ex post facto  laws are 1)
statutes that make an act punishable as a crime when such act was not an
offense when committed; 2) laws which, while not creating new offenses,
aggravate the seriousness of a crime; 3) statutes which prescribes greater
punishment for a crime already committed; or, 4) laws which alter the
rules of evidence so as to make it substantially easier to convict a
defendant.  "Applying the constitutional principle, the (Court) has held that
the prohibition applies only to criminal legislation which affects the
substantial rights of the accused."  This being so, there is no absolutely no
merit in petitioner's contention that the ruling of the lower court sustaining
the Treaty's retroactive application with respect to offenses committed
prior to the Treaty's coming into force and effect, violates the
Constitutional prohibition against ex post facto  laws. As the Court of
Appeals correctly concluded, 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. Court of Appeals, 235 SCRA 341)

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)

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)

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. 

xxxx

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,
G.R.No.135080, November 28, 2008 )

BILL OF ATTAINDER

A bill of attainder is a legislative act which inflicts punishment

without trial. Its essence is the substitution of a legislative for a judicial
determination of guilt. (People vs. Ferrer, G.R. Nos. L-32613-14, December
27,1972)

A bill of attainder is a legislative act which inflicts punishment on

individuals or members of a particular group without a judicial trial.
Essential to a bill of attainder are a specification of certain individuals or a
group of individuals, the imposition of a punishment, penal or otherwise,
and the lack of judicial trial. If the punishment be less than death, the act
is termed a bill of pains and penalties.

Bills of attainder are an ancient instrument of tyranny. In England a

few centuries back, Parliament would at times enact bills or statutes which
declared certain persons attainted and their blood corrupted so that it lost
all heritable quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]).
In more modern terms, a bill of attainder is essentially a usurpation of
judicial power by a legislative body. It envisages and effects the imposition
of a penalty — the deprivation of life or liberty or property — not by the
ordinary processes of judicial trial, but by legislative fiat. While cast in the
form of special legislation, a bill of attainder (or bill of pains and penalties,
if it prescribed a penalty other than death) is in intent and effect a penal
judgment visited upon an identified person or group of persons (and not
upon the general community) without a prior charge or demand, without
notice and hearing, without an opportunity to defend, without any of the
civilized forms and safeguards of the judicial process as we know it. Such is
the archetypal bill of attainder wielded as a means of legislative
oppression. (BOCEA vs. Teves, G.R. No. 181704, December 6, 2011, 661
SCRA 589)

Elements of Bill of Attainder

1. There must be a law.

2. The law imposes a penal burden on a named individual or easily
ascertainable members of a group.
3. There is a direct imposition of penal burden without judicial trial.

Characteristic:

It substitutes legislative fiat for a judicial determination of guilt.

What is the purpose of the constitutional ban against bills of

attainder?

The constitutional ban against bills of attainder serves to implement

the principle of separation of powers by confining legislatures to rule-
making and thereby forestalling legislative usurpation of the judicial
function. History in perspective, bills of attainder were employed to
suppress unpopular causes and political minorities, and it is against this evil
that the constitutional prohibition is directed. The singling out of a definite
class, the imposition of a burden on it, and a legislative intent, suffice to
stigmatize a statute as a bill of attainder. (People vs. Ferrer)

Cases:

R.A. No. 9335 is not a bill of attainder. A bill of attainder is a

legislative act which inflicts punishment on individuals or members of a
particular group without a judicial trial. Essential to a bill of attainder are a
specification of certain individuals or a group of individuals, the imposition
of a punishment, penal or otherwise, and the lack of judicial trial.

In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan

City, Justice Florentino P. Feliciano traces the roots of a Bill of Attainder, to
wit:

Bills of attainder are an ancient instrument of tyranny. In England a

few centuries back, Parliament would at times enact bills or statutes which
declared certain persons attainted and their blood corrupted so that it lost
all heritable quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]).
In more modern terms, a bill of attainder is essentially a usurpation of
judicial power by a legislative body. It envisages and effects the imposition
of a penalty — the deprivation of life or liberty or property — not by the
ordinary processes of judicial trial, but by legislative fiat. While cast in the
form of special legislation, a bill of attainder (or bill of pains and penalties,
if it prescribed a penalty other than death) is in intent and effect a penal
judgment visited upon an identified person or group of persons (and not
upon the general community) without a prior charge or demand, without
notice and hearing, without an opportunity to defend, without any of the
civilized forms and safeguards of the judicial process as we know it (People
v. Ferrer, 48 SCRA 382 [1972]; Cummings and Missouri, 4 Wall. 277, 18 L.
Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed. 1252 [1945]; U.S.
v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the archetypal bill
of attainder wielded as a means of legislative oppression. x x x
R.A. No. 9335 does not possess the elements of a bill of attainder. It
does not seek to inflict punishment without a judicial trial. R.A. No. 9335
merely lays down the grounds for the termination of a BIR or BOC official
or employee and provides for the consequences thereof. The democratic
processes are still followed and the constitutional rights of the concerned
employee are amply protected.(BOCEA vs. Teves, G.R. No. 181704,
December6,2011)

The Court, in People v. Ferrer, supra, defined a bill of attainder as a

legislative act which inflicts punishment on individuals or members of a
particular group without a judicial trial. Essential to a bill of attainder are a
specification of certain individuals or a group of individuals, the imposition
of a punishment, penal or otherwise, and the lack of judicial trial. This last
element, the total lack of court intervention in the finding of guilt and the
determination of the actual penalty to be imposed, is the most essential
[Id. at pp. 395-397; 400-401]. P.D. No. 1866 does not possess the
elements of a bill of attainder. It does not seek to inflict punishment
without a judicial trial. Nowhere in the measure is there a finding of guilt
and an imposition of a corresponding punishment. What the decree does is
to define the offense and provide for the penalty that may be imposed,
specifying the qualifying circumstances that would aggravate the offense.
There is no encroachment on the power of the court to determine after
due hearing whether the prosecution has proved beyond reasonable doubt
that the offense of illegal possession of firearms has been committed and
that the qualifying circumstance attached to it has been established also
beyond reasonable doubt as the Constitution and judicial precedents
require. (Misolas vs. Hon. Panga, G.R. No. 83341, January 30, 1990)

Article III, section 1 (11) of the Constitution states that "No bill of
attainder or ex port facto  law shall be enacted. A bill of attainder is a
legislative act which inflicts punishment without trial. Its essence is the
substitution of a legislative for a judicial determination of guilt. The
constitutional ban against bills of attainder serves to implement the
principle of separation of powers by confining legislatures to
rule-making and thereby forestalling legislative usurpation of the judicial
function. History in perspective, bills of attainder were employed to
suppress unpopular causes and political minorities, and it is against this evil
that the constitutional prohibition is directed. The singling out of a definite
class, the imposition of a burden on it, and a legislative intent, suffice to
stigmatizea statute as a bill of attainder. 

In the case at bar, the Anti-Subversion Act was condemned by the

court a quo  as a bill of attainder because it "tars and feathers" the
Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and
grave danger to the security of the Philippines.'" By means of the Act, the
trial court said, Congress usurped "the powers of the judge," and assumed
"judicial magistracy by pronouncing the guilt of the CCP without any of the
forms or safeguards of judicial trial." Finally, according to the trial court, "if
the only issue [to be determined] is whether or not the accused is a
knowing and voluntary member, the law is still a bill of attainder because it
has expressly created a presumption of organizational guilt which the
accused can never hope to overthrow."

When the Act is viewed in its actual operation, it will be seen that it
does not specify the Communist Party of the Philippines or the members
thereof for the purpose of punishment. What it does is simply to declare
the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against
membership in the outlawed organization. The term "Communist Party of
the Philippines" issued solely for definitional purposes. In fact the Act
applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its
focus is not on individuals but on conduct.
This feature of the Act distinguishes it from section 504 of the U.S.
Federal Labor-Management Reporting and Disclosure Act of 1959  which, in
U.S. vs. Brown,  was held to be a bill of attainder and therefore
unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —
(1) as an officer, director, trustee, member of any executive
board or similar governing body, business agent, manager,
organizer, or other employee (other than as an employee
 performing exclusively clerical or custodial duties) of any labor
organization.

during or for five years after the termination of his membership

in the Communist Party....

(b) Any person who willfully violates this section shall be fined
not more than $10,000 or imprisoned for not more than one
year, or both.

This statute specified the Communist Party, and imposes disability

and penalties on its members. Membership in the Party, without more, ipso
facto  disqualifies a person from becoming an officer or a member of the
governing body of any labor organization. As the Supreme Court of the
United States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill of
attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use of such
positions to bring about political strikes. In section 504, however,
Congress has exceeded the authority granted it by the Constitution.
The statute does not set forth a generally applicable rule decreeing
that any person who commits certain acts or possesses certain
characteristics (acts and characteristics which, in Congress' view,
make them likely to initiate political strikes) shall not hold union
office, and leaves to courts and juries the job of deciding what
persons have committed the specified acts or possessed the specified
characteristics. Instead, it designates in no uncertain terms the
persons who possess the feared characteristics  and therefore cannot
hold union office without incurring criminal liability — members of
the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US

1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our
conclusion. That case involved an appeal from an order by the
Control Board ordering the Communist Party to register as a
 "Communist-action organization," under the Subversive
Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et
seq. (1958 ed). The definition of "Communist-action
organization" which the Board is to apply is set forth in sec. 3
of the Act:

[A]ny organization in the United States ... which (i)is

substantially directed, dominated, or controlled by the foreign
government or foreign organization controlling the world
Communist movement referred to in section 2 of this title,
and(ii) operates primarily to advance the objectives of such
world Communist movement... 64 Stat 989, 50 USC sec. 782
(1958 ed.)

A majority of the Court rejected the argument that the Act was
a bill of attainder, reasoning that sec. 3 does not specify the
persons or groups upon which the deprivations setforth in the
Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that the
Communist Party was a "Communist-action organization," the
Court found the statutory definition not to be so narrow as to
insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of

Appeals has sustained its conclusion, that the Communist Party,
by virtud of the activities in which it now engages, comes
within the terms of the Act. If the Party should at anytime
choose to abandon these activities, after it is once registered
pursuant to sec. 7, the Act provides adequate means of relief.
(367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be

totally unnecessary to charge Communists in court, as the law alone,
without more, would suffice to secure their punishment. But the undeniable
fact is that their guilt still has to be judicially established. The Government
has yet to prove at the trial that the accused joined the Party knowingly,
willfully and by overt acts, and that they joined the Party, knowing its
subversive character and with specific intent to further its basic objective,
i.e., to overthrow the existing Government by force deceit, and other illegal
means and place the country under the control and domination of a foreign
power.

As to the claim that under the statute organizationl guilt is

nonetheless imputed despite the requirement of proof of knowing
membership in the Party, suffice it to say that is precisely the nature of
conspiracy, which has been referred to as a "dragneet device" whereby all
who participate in the criminal covenant are liable. The contention would
be correct if the statute were construed as punishing mere membership
devoid of any specific intent to further the unlawful goals of the
Party. 13 But the statute specifically required that membership must
be knowing  or active, with specific intent to further the illegal objectives of
the Party. That is what section 4 means when it requires that membership,
to be unlawful, must be shown to have been acquired "knowingly, willfully
and by overt acts."  The ingredient of specific intent to pursue the unlawful
goals of the Party must be shown by "overt acts." 15 This constitutes an
element of "membership" distinct from the ingredient of guilty knowledge.
The former requires proof of direct participation in the organization's
unlawful activities, while the latter requires proof of mere adherence to the
organization's illegal objectives.

Even assuming, however, that the Act specifies individuals and not
activities, this feature is not enough to render it a bill of attainder. A
statute prohibiting partners or employees of securities underwriting firms
from serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the
temptation to commit acts deemed inimical to the national economy, has
been declared not to be a bill of attainder. 16 Similarly, a statute requiring
every secret, oath-bound society having a membership of at least twenty
to register, and punishing any person who becomes a member of such
society which fails to register or remains a member thereof, was declared
valid even if in its operation it was shown to apply only to the members of
the Ku Klux Klan. 
In the Philippines the validity of section 23 (b) of the Industrial Peace
Act,  requiring labor unions to file with the Department of Labor affidavits
of union officers "to the effect that they are not members of the
Communist Party and that they are not members of any organization which
teaches the overthrow of the Government by force or by any illegal or
unconstitutional method," was upheld by this Court. 

Indeed, it is only when a statute applies either to named individuals

or to easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial does it become a bill of
attainder.  It is upon this ground that statutes which disqualified those who
had taken part in the rebellion against the Government of the United States
during the Civil War from holding office,  or from exercising their
profession,  or which prohibited the payment of further compensation to
individuals named in the Act on the basis of a finding that they had
engages in subversive activities, 23 or which made it a crime for a member
of the Communist Party to serve as an officer or employee of a labor
union, have been invalidated as bills of attainder. (People vs. Ferrer, G.R.
No. L-32613-14, December 27, 1972)

The contention that B. P. 22 is a bill of attainder, one which inflicts

punishment without trial and the essence of which is the substitution of a
legislative for a judicial determination of guilt, fails. For under B. P. 22,
every element of the crime is still to be proven before the trial court to
warrant a conviction for violation thereof. (Recuerdo vs People, G.R. No.
133036. January 22, 2003)