Retroactive Effect of Penal Laws:

Challenging the Observance of the Ex Post

Facto and Nullum Crimen Principles
in this Day and Age
A Case Study

Submitted by
Sam Joel Nang, JD

Submitted to
Atty. Blair M. Dura

Originally published/submitted on November 17, 2021

 Retroactive Effect of Penal Laws: Challenging the Observance of
the Ex Post Facto and Nullum Crimen Principles in this Day and Age

Introduction

i. Background and history

Criminal law in the Philippines has three basic characteristics: general,
territorial, and prospective. It is general in that it is binding upon all
persons who reside to sojourn in the Philippines, irrespective of age, sex,
color, creed, or personal circumstances, subject to the treaty stipulations
and laws of preferential application. Moreover, it is territorial as the law
is applicable to all crimes committed within the limits of Philippine
territory, which includes its atmosphere, interior waters and maritime
zone. Finally – and as will be dealt with henceforth – it is prospective in
that the law does not have any retroactive effect, except when it favors
the offender or the law otherwise provides.1

Why the prohibition on the law’s retroactive effect is widely observed

dates back to the ancient period. The Greeks were influenced by it as
established in the case of Timokrates and the Athenian Ambassadors,
which was first to highlight its essentiality.2 Even the Roman Law itself
included the same principle. The Code in Corpus Juris Civilis3 declared
that laws and customs should be given an operation on future transactions
and that they cannot be recalled to past facts unless it is stated expressly
that they apply either to past time or to pending transactions. (Leges et
constitutiones futuris certum dare est formam negotiis, non ad facta
preterita revocari, nisi nominatim et de preterito tempore et adhuc

1
Limitations, Characteristics of Criminal Law. (2019). Project Jurisprudence.
https://www.projectjurisprudence.com/2019/06/limitations-characteristics-of-criminal-law.html
2
The Ambassadors had withheld money owed to the city-state, and were condemned to repay twice the
amount. Timokrates succeeded in securing the enactment of a law to relieve the Ambassadors of this
penalty, but, as a consequence of the efforts of Demosthenes, the law was held to be invalid because it
was retroactive.
3
The Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence,
issued from 529 to 534 by order of Justinian I, Byzantine Emperor.

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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pendentibus negotiis cautum sit.)4 Marcus Tullius Cicero (106—43

B.C.E.), a Roman statesman and a lawyer, explained the importance of
the non-retroactivity principle by saying that individuals should be able to
rely on laws in the expectation that the state will not afterwards interfere
with individuals’ rights. He acknowledged, however, the limits of non-
retroactivity, such as in situations when the grievous nature of committed
actions resulted in an assumed positive duty not to commit them, even in
the absence of positive law expressed in a statute.5

In 1869, German jurist Friedrich Carl von Savigny conceptualized two

rules concerning non-retroactivity of law: (1) “no retroactive effect is to
be attributed to new laws;” and (2) “new laws leave acquired rights
unaffected.”6 Yehuda Zvi Blum concluded that it is a rule generally
recognized by civilized nations that in principle no retroactive application
should be given to any legal norm.7 Indeed, if a new law is to apply
retroactively, it may (1) affect previously-established rights or legal
relationships; (2) alter pre-existing legal arrangements beginning with the
effective date of the new law, or it may relate back to the original date of
creation of legal relationships arising under prior law; and (3) attach legal
consequences to decisions made by private parties who did not anticipate
these consequences at the time the decision was made.8

ii. Ex post facto law

The prohibition of the retroactive application of criminal law found its
way into many legal systems and governmental realms, the 1987

4
Ibid.
5
Kryvoi, Y. and Matos, S., (2021). Non-Retroactivity as a General Principle of Law. Utrecht Law
Review, 17(1), pp.46–58. http://doi.org/10.36633/ulr.604
6
Li, Z. (2018). International Intertemporal Law. California Western School of Law Scholarly
Commons. https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1538&context=cwilj
7
Yehuda Blum, Historic Titles in International Law (1965)
8
Laitos, J. (1997) Legislative Retroactivity. 52 Wash. U. J. Urb. & Contemp. L. 081.
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1050&context=law_urbanlaw

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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Philippine Constitution9 included. Under Section 22 of Article III (Bill of

Rights), the passage of an ex post facto law is expressly prohibited:

“No ex post facto law or bill of attainder shall be enacted.”

An ex post facto law is one that retroactively changes the legal

consequences (or status) of actions that were committed, or relationships
that existed, before the enactment of the law. The term “ex post facto”
means “happening or promulgated after the fact.” While the above
constitutional mandate specifically prohibits the enactment of such a law,
it is not per se illegal, especially where as a consequence it does not
impair vested rights or obligations of contracts and it benefits the
accused.10

The same rule is incorporated in the Civil Code of the Philippines,11

Article 4 of which states:

“Laws shall have no retroactive effect, unless the contrary is

provided.”

Additionally, the Revised Penal Code of the Philippines12 is no exception.

Article 22 echoes the said principle of non-retroactivity of law, subject to
an exception concerning habituality:

“Retroactive effect of penal laws. — Penal Laws shall have a

retroactive effect insofar as they favor the persons guilty of a
felony, who is not a habitual criminal, as this term is defined in
Rule 5 of Article 62 of this Code, although at the time of the

9
The constitution or supreme law of the Republic of the Philippines. Its final draft was completed by
the Constitutional Commission on October 12, 1986, and was ratified by a nationwide plebiscite on
February 2, 1987.
10
Not All Ex Post Facto Laws are Illegal. (2019). Project Jurisprudence.
https://www.projectjurisprudence.com/2019/06/why-ex-post-facto-laws-are-ok.html
11
Republic Act No. 386
12
Act No. 3815

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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publication of such laws a final sentence has been pronounced and

the convict is serving the same.”

Article 62(5) lays down the effects of habitual delinquency:

“Effect of the attendance of mitigating or aggravating

circumstances and of habitual delinquency. — Mitigating or
aggravating circumstances and habitual delinquency shall be taken
into account for the purpose of diminishing or increasing the
penalty in conformity with the following rules:

xxx

5. Habitual delinquency shall have the following effects:

(a) Upon a third conviction the culprit shall be sentenced

to the penalty provided by law for the last crime of
which he be found guilty and to the additional
penalty of prision correccional in its medium and
maximum periods;
(b) Upon a fourth conviction, the culprit shall be
sentenced to the penalty provided for the last crime of
which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium
periods; and
(c) Upon a fifth or additional conviction, the culprit shall
be sentenced to the penalty provided for the last
crime of which he be found guilty and to the
additional penalty of prision mayor in its maximum
period to reclusion temporal in its minimum period.

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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xxx”13

The constitutional doctrine that outlaws an ex post facto law generally

prohibits the retrospectivity of penal laws.14 As applied in various facets
of the legal system, the principle of non-retroactivity of law thus infers
that the jurisdiction of a court depends on the law existing at the time an
action is filed; a statute continues to be in force with regard to all rights
that had accrued prior to its amendment; 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; and many others.15

iii. The nullum crimen sine lege principle

It is worth noting that the non-retroactive application of the law is also
commonly regarded as a derivative of the nullum crimen sine lege
principle.16 Under this maxim, which means “no crime without law,”
punishing an individual in the absence of a specific rule prohibiting
certain conduct when committed is disapproved of. In short, no act can be
pronounced criminal unless it is clearly made so by statute prior to its
commission (nullum crimen, nulla poena, sine lege). So, too, no person
who is not clearly within the terms of a statute can be brought within
them.17

There certainly is a violation of one’s right where a law is enacted to

punish a previously undefined offense or, technically speaking, an
innocent act when done. However, it is but conscientious to propose that
13
A habitual delinquent is a person who, within a period of ten years from the date of his release or last
conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or
falsification,is found guilty of any said crimes a third time or oftener.
14
Salvador v. Mapa, G.R. No. 135080, November 28, 2007
15
Rule on Retroactivity of Laws. SAKLAW. https://saklawph.com/retroactivity/
16
Spiga, V. (2011). Non-retroactivity of Criminal Law: A New Chapter in the Hissène Habré Saga.
Journal of International Criminal Justice, Volume 9, Issue 1. https://doi.org/10.1093/jicj/mqq081
17
Causing v. Commission on Elections, G.R. No. 199139, September 9, 2014

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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notwithstanding the absence of a clear rule banning conduct as criminal,

acts that seriously harm society should not go unpunished.18 The non-
retroactivity principle does leave some objectionable aspects that are
incompatible as is shown by the aforementioned perspectives. It is,
therefore, crucial to know where to draw the line.

Both the ex post facto and nullum crimen principles have become norms
in the study and application of criminal law in the Philippines. These
inherent features of penal law, as the foundations of non-retroaction, have
not only brought forth new legislations but – at the same time – have as
well seen some of the most controversial legal outcries involving the
country’s justice system. This case study will specifically examine and
reconcile the gap between the general principle of non-retroactive
application of law and the modern-day challenge it poses to the very
essence of administering justice. By “challenge” is meant the evils that
the principle is considerably vulnerable to: the law or its application
purportedly being too savage and/or its protective mantle abused.

Review of Related Literature

So familiar is the legal maxim lex prospicit, non respicit, which translates
to “the law looks forward, not backward.”19 Indeed, the rule that laws
shall have only a prospective effect has been a well-established and time-
honored principle that is now embedded in many legal contexts. Such is
the application of penal laws. In the Philippines, the rule that a law that
makes criminal an act or that provides for or modifies its punishment
shall affect only future actions has been accepted in a general sense. This
strict “principle of legality,” as it is often regarded as, is nevertheless
relaxed when retrospective application will be favorable to the person

18
Cassese, A. International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008), at 38–39.
19
Laceste v. Santos, G.R. No. L36886, February 1, 1932

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guilty of a felony whether by the decriminalization of the act or by the

reduction of the penalty.

The Court in a plethora of cases has had the occasion to emphasize the
basic principle of non-retroaction of law and its exception. In the 1923
case of People v. Parel, the construction and basis of Article 22 of the
Revised Penal Code of the Philippines was explained.20 Quoting Pascuale
Fiore, the leading Latin authority on the retroactivity of statutes,21 the
Court concluded that it has been the settled doctrine in countries whose
criminal laws are based on the Latin system that such laws are retroactive
in so far as they favor the accused.22 In Spain and in the Philippine
Islands this doctrine is, as we have seen, re-inforced by statutory
enactment, and is even made applicable to cases where “final sentence
has been pronounced and the convict is serving same.”23 It may be clearly
seen that as far back as the year 1884, when the Penal Code took effect in
these Islands until the 31st of December, 1931, the principle underlying
our laws granting to the accused in certain cases an exception to the
general rule that laws shall not be retroactive when the law in question
favors the accused, has evidently been carried over into the Revised Penal
Code at present in force in the Philippines through Article 22. This is an
exception to the general rule that all laws are prospective, not
retrospective.24

Not all ex post facto laws, then, are illegal. As a matter of fact, Congress
in passing a law can insert therein a provision giving it a retroactive effect.

20
Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony or
misdemeanor, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving same.
21
Fiore’s international reputation rests on his writings on public and private international law. Since
they reflect the spirit and political conditions of his time, they have tended to become out of date.
22
Fiore, P. Irretroactividad e Interpretacion de las Leyes,
23
G.R. No. L-18260, January 27, 1923
24
Laceste v. Santos, supra

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Should the retroactive provision of the law pass the constitutional test on
prohibition against ex post facto law, the Court must give retroactive
effect to this law even if the accused is a habitual delinquent. This is also
true as regards decriminalization or repeal of a penal law. If the intention
of the new law is to decriminalize an act punishable by the repealed law,
the accused should be acquitted or, if already convicted, released,
notwithstanding the person’s habitual delinquency. Note that retroactive
effect of criminal statutes does not apply to the culprit’s civil liability for
the reason that the rights of offended persons or innocent third parties are
not within the gift of arbitrary disposal of the State.

i. In Philippine jurisprudence
The first instance in which the Supreme Court of the Philippines gave
consideration to Article 22 of the Penal Code was in the case of Tavera v.
Valdez.25 As cited in People v. Moran,26 it was held there that the general
rule that penal laws shall be retroactive in so far as they favor the accused
has no application where the later law is expressly made inapplicable to
pending actions or existing cause of action. This means that in order for a
penal statute favorable to the accused to have a retroactive effect, it is not
necessary that it be so expressly provided in the statues, or, to put it in
another way, that the provision declaring the retroactivity be repeated
therein, but that if the Legislature intends it not to have a retroactive
effect, it should expressly so state in the same statute.27

An interrelated legal concept of the ex post facto principle is prescription,

which becomes significant when, in its observance particularly through a
new law, proves “technically” prejudicial to the accused. This is

25
G.R. No. L-922, November 8, 1902
26
G.R. No. L-17905, January 27, 1923
27
Ibid.

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illustrated in the 1992 case of People v. Paredes, Jr.,28 where the Court
denied the application of Batas Pambansa Blg. 195, stating that it would
make it an ex post facto law for it would alter his situation to his
disadvantage by making him criminally liable for a crime that had already
been extinguished under the law existing when it was committed.
Although B.P. Blg. 195, which was approved on March 16, 1982,
amended Section 11 or R.A. No. 3019 (Anti-Graft and Corrupt Practices
Act), increasing from ten (10) to fifteen (15) years the period for the
prescription or extinguishment of a violation thereof, it cannot be given
retroactive application to the “crime” which was committed by Paredes in
January 1976 yet, for it should be prejudicial to the accused. It would
deprive him of the substantive benefit of the shorter (10 years)
prescriptive period under Section 11, R.A. 3019, which was an essential
element of the “crime” at the time he committed it.29

In People v. Morilla, the trial court imposed on petitioner the penalty of

reclusion perpetua under R.A. No. 7659 rather than life imprisonment,
ratiocinating that R.A. No. 7659 could be given retroactive application
since it is more favorable to the petitioner in view of its having a less
stricter punishment.30 Since reclusion perpetua is a lighter penalty than
life imprisonment, and considering the rule that criminal statutes with a
favorable effect to the accused, have, as to him, a retroactive effect, the
penalty imposed by the trial court upon petitioner is proper. In conclusion,
the spirit of Article 22 of the Penal Code is unmistakably plain: Penal

28
G.R. No. 101724, July 3, 1992
29
The accused asserts that since at the time of the alleged commission of the crime (January 21, 1976)
the period of prescription was ten (10) years under Sec. 11 of R.A. No. 3019, the crime should have
prescribed in 1986.
30
R.A. No. 7659 further introduced new amendments to Section 15, Article III and Section 20, Article
IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15
was changed from “life imprisonment to death and a fine ranging from ₱20,000.00 to ₱30,000.00” to
“reclusion perpetua to death and a fine ranging from ₱500,000.00 to ₱10 million.”

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laws which are favorable to the accused are given retroactive effect,
provided the person who is to benefit from the same is not a habitual
criminal, unless by express command, or by necessary and unavoidable
implication, a different construction of the Legislative intent is required.

ii. In the face of new breeds of crimes

Perhaps the most followed controversy at present that arguably touches
the retrospectivity of law is the 2020 cyber libel conviction of Rappler,
Inc. Chief Executive Officer Maria Ressa and former researcher-writer
Reynaldo Santos Jr.31 The case, which is considered “high profile” given
the nature of the circumstances from which it stemmed, made global
headlines and sparked international debates for reasons that are of legal
character.32 Among the key issues raised in the suit33 was the applicability
of R.A. No. 10175 or the Cybercrime Prevention Act of 2012 where the
online article subject of the charge was published before the law’s
enactment but was later “corrected” due to a typographical error and thus
deemed “republished” during its effectivity. Judge Rainelda Estacio-
Montesa of Manila Regional Trial Court Branch 46, in the 37-page
decision, explained that the “update” done on the offending article in the
website of Rappler, Inc. on February 19, 2014 constituted a

31
Torres-Tupas, T. Rappler CEO Maria Ressa, writer found guilty of cyber libel. Inquirer.
https://newsinfo.inquirer.net/1291681/rappler-ceo-maria-ressa-writer-guilty-of-cyberlibel
32
There are robust constitutional protections for the media, and Filipino journalists jealously guard
their freedoms. But at the same time, the independence – and freedom – of the press has been
continually undermined by political and business elites, the demands of the market and the news
media’s own professional and ethical lapses. See Coronel, S. (2019) Press Freedom in the Philippines.
Press Freedom in Contemporary Asia. 1st ed.
https://www.taylorfrancis.com/chapters/edit/10.4324/9780429505690-14/press-freedom-philippines-
sheila-coronel
33
People v. Santos, Ressa and Rappler, R-MNL-19-01141-CR, June 15, 2020

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“republication” of the same content originally published on May 29, 2012,

thereby putting the report within the scope of the Cybercrime Law.34

There is technically no retroaction or ex post facto application of law here

based on that reasoning, but there definitely lies a gray area which may
bring about consequences that are nothing short of ironic and obscure. If
at the time of the original publication the said act (cyber libel) was yet not
criminal, how could correcting a belatedly spotted misspelled word35 in
the subject article be outrightly considered a “republication” – now thus
covered by the new law – if not, basically, to make it criminal? The Court
upheld the prosecution’s reliance on the 1988 case of Soriano v. IAC,36
where the “multiple publication” rule was mentioned. It means that each
and every publication of the same libel constitutes a distinct offense.37
Unsurprisingly, such interpretation caused a stir among law experts as it
could mean that years-old print articles, if and once digitalized, may now
be vulnerable to cyber libel.38

To further illustrate the impact of the non-retroactivity principle on

criminal law – in relation to the maxim nullum crimen sine lege – and the
downsides of its ubiquity, the ILOVEYOU virus scandal is very telling.
On May 4, 2000, Onel de Guzman, then a 23-year-old computer science
student, allegedly released a self-propagating computer worm39 into the
World Wide Web, resulting to one of the most destructive and farthest-
34
See Decision in People vs. Reynaldo Santos, Jr., Maria Angelita Ressa and Rappler, Re Online Libel
(Full Text). (2020) P&L Law. https://pnl-law.com/blog/decision-in-people-vs-reynaldo-santos-jr-
maria-angelita-ressa-and-rappler-re-online-libel-full-text/
35
Rappler corrected the misspelled word “evation” and changed it to “evasion.” The Court, however,
found that the defense failed to “adduce evidence indicating the error.”
36
G.R. No. 72383, November 9, 1988
37
It is argued by the Rappler camp that the main concern in the 1988 case of Soriano is jurisdiction,
and that the Philippine Supreme Court has not authoritatively made a ruling on republication as applied
to online media.
38
Buan, L. After ruling vs Ressa, uploaded old print articles vulnerable to cyber libel. Rappler.
rappler.com/nation/digitization-years-old-print-articles-feared-vulnerable-cyber-libel
39
See Hopper, D. Destructive ‘ILOVEYOU’ computer virus strikes worldwide. The London School of
Economics and Political Science. https://econ.lse.ac.uk/staff/vassilis/pub/news/iloveyouvirus.pdf

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reaching Internet worm spread in recent history. Sometimes referred to as

the “Love Bug” or “Love letter for you,” the malware reportedly affected
tens of millions of personal computers operating on Windows. It spread
like wildfire westward across the world from the Pandacan neighborhood
in Manila in the morning of May 5, 2000, moving first to Hong Kong,
next to Europe, and finally to the United States.40 The virus came in the
form of an email with the subject “ILOVEYOU” and an attachment
called “LOVE-LETTER-FOR-YOU.TXT” (the latter file extension, .vbs,
which could have roused suspicion on the recipients, was not shown as it
is a known file type by Windows which its computers of the time often
hid by default).41 Since the worm targeted the victims’ Microsoft Outlook
contacts, which would normally include family, friends, clients and
officemates, it led them to believe that it was safe to open, thus
unwittingly advancing its spread. The virus within days of unleashing had
caused billions of dollars’ worth of damage, even forcing the Pentagon
and the British Parliament, among others, to shut down their email
services to bring the cyber pandemic under control.42

The National Bureau of Investigation (NBI) immediately conducted a

criminal investigation which led to the arrest of de Guzman and a certain
Reonel Ramones. At that point, however, they were unsure what felony
or crime to charge the two with in court. It was theorized by some agents
that they may be charged with violation of R.A. No. 8484 or the Access
Device Regulation Act, a law designed mainly to penalize credit card
fraud. Another theory was that they could be charged with malicious

40
See Griffiths, James. ‘I love you’: How a badly-coded computer virus caused billions in damage and
exposed vulnerabilities which remain 20 years on. CNN.
https://edition.cnn.com/2020/05/01/tech/iloveyou-virus-computer-security-intl-hnk/index.html
41
The attachment contained malicious code that would overwrite files, steal passwords, and
automatically send copies of itself to all contacts in the victim's Microsoft Outlook address book.
42
See White, Geoff. Love Bug’s creator tracked down to repair shop in Manila. BBC.
bbc.com/news/technology-52458765

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mischief, a felony under the Revised Penal Code which involves damage
to property.43

Both recommendations proved futile. The Department of Justice opined

that the Access Device Regulation Act punishes the trafficking, control,
custody or possession of credit card-making or altering equipment,
without being in the business thereof. Since a prepaid Internet usage card
is not an “access device” within the purview of the law, the law cannot be
given a broader scope as to include computer hacking or uploading a
computer virus. The charge of malicious mischief was likewise dismissed
because only Sky Internet (a local Internet Service Provider)44 was
impleaded as a private complainant. The DOJ found that there was no
tangible evidence that Ramones and de Guzman specifically intended to
damage or injure that ISP’s facilities. So pronounced in the DOJ’s
resolutions was the legal doctrine nullum crimen, nulla poena sine lege,
which saved the two primary suspects from prosecution.45

The groundbreaking computer chaos called forth the enactment by the

Philippine Congress of R.A. No. 8792, otherwise known as the E-
Commerce Law46, in July 2000. Even then, the country’s inability to hold
the creators of the ILOVEYOU virus was heavily criticized, with
emphasis on Filipino law’s inadequacy at the time it was released. De
Guzman was described as “modern-day Robin Hood” who had escaped

43
Gana Jr., S. Prosecution of Cyber Crimes Through Appropriate Cyber Legislation in the Republic of
the Philippines. Agenda Item Two.
https://web.archive.org/web/20080206114348/http://www.acpf.org/WC8th/AgendaItem2/I2%20Pp%2
0Gana%2CPhillipine.html
44
The NBI initially received a complaint from Sky Internet, a local Internet service provider (ISP). The
ISP claimed that it has received numerous calls from European computer users, complaining that a
computer virus denominated as “ILOVEYOU” virus was sent to their computers through the said ISP.
45
DOJ Resolution in I.S. No. 2000-9 1 8, “National Bureau of Investigation-Sky Internet vs. Reonel R.
Ramones,” June 26, 2000; DOJ Resolution in I.S. No. 2000-1242, “National Bureau of Investigation
Sky Internet vs. Onel De Guzman,” August 14, 2000
46
Published in Malaya and Philippine Post on June 19, 2000. Published in the Official Gazette, Vol. 96
No. 48, page 7675 on November 27, 2000.

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unscathed.47 While the Philippines did have an extradition treaty with the
United States, it only applied to crimes prosecutable in both countries.48
As a result, there was little chance of sending de Guzman and Ramones
abroad once the case was dropped. The principle that there is no crime
where there is no law punishing it was without a doubt strictly adhered to
in the case, notwithstanding the extent of the damage the outbreak had
caused. Clearly, the Philippines observe the so-called principle of legality.
No act constitutes a crime here unless it is made so by law.49

Comparing the above judicial literatures, it can be inferred that there

seems to be a gaping loophole through which may be channeled
judgments so formidably unsound. For one, if a minor “update” to an
online article could qualify as criminal a previously unpunished act
(cyber libel) by an interpretation so technical to the disadvantage of the
accused; and if a law designed to suppress and penalize information
technology-related crimes cannot hold an imprudent programmer
accountable for want of a prior measure to the injury of the victims
forever unrectified, where, then, should the Court draw the line and
determine the limits of the phrase “in favor of the accused” in the interest
of justice, if at all?

Discussion
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. While laws as a general
rule are prospective, there are recognized instances where they are given

47
See Global Internet Regulation: The Residual Effects of the ILoveYou Computer Virus and the Draft
Convention on Cyber-Crime. 25 Suffolk Transnat'l L. Rev. 491 (2001-2002). HeinOnline.
https://heinonline.org/HOL/LandingPage?handle=hein.journals/sujtnlr25&div=27&id=&page=
48
Extradition Treaty with the Philippines. The LawPhil Project.
https://lawphil.net/international/treaties/extrad.html
49
U.S. v. Taylor, G.R. No. 9726. December 8, 1914

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 Retroactive Effect of Penal Laws: Challenging the Observance of
the Ex Post Facto and Nullum Crimen Principles in this Day and Age

retroactive effect. The rationale against retroactivity is easy to perceive.

The retroactive application of a law usually divests rights that have
already become vested or impairs the obligations of contract and hence, is
unconstitutional.50 If the law itself provides for its retroactivity, then it
will be applied so. As stated under Article 4 of the Civil Code:

“Laws shall have no retroactive effect, unless the contrary is

provided.”

What is constitutionally prohibited, however, is the passing of an ex post

facto law, such as one that criminalizes an act done before the passing of
the law and which was innocent when done. Section 22 of Article III (Bill
of Rights) provides:

“No ex post facto law or bill of attainder shall be enacted.”

This constitutional proscription of ex post facto laws is aimed against the

retrospectivity of penal laws.

i. Other exceptions to the principle of non-retroactivity of law

One instance where the law is considered to have retroactivity is if it is
clearly expressed in the language of the statute. It is established that laws
fixing a period of prescription are not applicable to crimes previously
committed, unless by their terms they are clearly retroactive or contain an
express provision to that effect.51 The existence of an effectivity clause
defining when the law shall take effect militates conclusively against the
retroactivity of such law.

If the law is remedial in nature, it is also retroactive since there are no

vested rights in rules of procedure. There is no dispute that rules of
50
Benzonan v. Court of Appeals, G.R. No. 97973, January 27, 1992; Development Bank of the
Philippines v. Court of Appeals, G.R. No. 97998, January 27, 1992, citing Francisco v. Certeza, 3
SCRA 565, 1961
51
People v. Moran, supra.

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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procedure can be given retroactive effect. Procedural laws are adjective

laws which prescribe rules and forms of procedure of enforcing rights or
obtaining redress for their invasion; they refer to rules of procedure by
which courts applying laws of all kinds can properly administer justice.
They include rules of pleadings, practice and evidence. As applied to
criminal law, they provide or regulate the steps by which one who
commits a crime is to be punished.52 A retroactive law, in a legal sense, is
one which takes away or impairs vested rights acquired under laws, or
creates a new obligation and imposes a new duty, or attaches a new
disability, in respect of transactions or considerations already past. Since
remedial statutes or statutes relating to remedies or modes of procedure
do not create new or take away vested rights, but only operate in
furtherance of the remedy or confirmation of rights already existing, the
same do not come within the legal conception of a retroactive law, or the
general rule against the retroactive operation of statutes.

There are many other exceptions to the rule of prospectivity, and these
are laws of emergency nature under police power, curative laws,
substantive right declared for first time unless vested rights impaired, and
– as is the nexus of this study – laws favorable to the accused.53

ii. In criminal law

A statute which is penal in nature may be given retroactive effect,
provided it is favorable to the accused or convict and the latter is not a
habitual delinquent as defined under the Revised Penal Code. Thus, the
plain precept contained in Article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons

Tan Jr. v. Court of Appeals, G.R. No. 136368, January 6, 2002

52

See Paras. Civil Code of the Philippines Annotated, 1984 ed., Vol. 1, pp. 22-23, as cited in Co v.
53

Court of Appeals, G.R. No. 100776, October 28, 1993

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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accused of a felony or misdemeanor, even if they may be serving

sentence, would be useless and nugatory if the courts of justice were not
under obligation to fulfill such duty, irrespective of whether or not the
accused has applied for it, just as would also all provisions relating to the
prescription of the crime and the penalty.54 But in the case of The United
States v. El Chino Cuna,55 the Court ruled that the enactment of new
penal law, notwithstanding the fact that they contain general repealing
clauses, does not deprive the courts jurisdiction to try, convict, and
sentence persons charged with violations of the old law prior to the date
when the repealing law goes into effect, unless the new law wholly fails
to penalize the acts which constituted the offense defined and penalized
in the repealed law.56

“Retroactive effect of penal laws. — Penal Laws shall have a

retroactive effect insofar as they favor the persons guilty of a
felony, who is not a habitual criminal, as this term is defined in
Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and
the convict is serving the same.”

In Nasi-Villar v. People, the Court held that 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.57 It is settled that conscience and good law justify this

54
People v. Moran, supra.
55
G.R. No. L-4504, December 15, 1908
56
The reliance on English and American common law doctrines cannot be given credence since such is
not accepted in this jurisdiction. Thus, the courts have jurisdiction over the case – to try, convict and
sentence offenders. Moreover, even if Act No. 1761 repealed Act No. 1461, no retroactive effect of the
law shall take effect in that the new law penalized the same act in the repealed law; hence, the new law
cannot be said to be more favorable to the accused.
57
G.R. No. 17169, November 14, 2008

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 Retroactive Effect of Penal Laws: Challenging the Observance of
the Ex Post Facto and Nullum Crimen Principles in this Day and Age

exception, which is contained in the well-known aphorism: Favorabilia

sunt amplianda, odiosa restringenda (penal laws which are favorable to
the accused are given retroactive effect). Such exception was inspired by
sentiments of humanity, and accepted by science.58 Hence, where a later
law criminalizes an act which was innocent when done – or makes a
crime greater than it was when committed – intervenes this very rule. As
Fiore explained, the reason for the irretroactivity of the more severe law
is found in the principle that the sovereign power cannot, without
committing an injustice, apply the more severe prescriptive provisions;
and those provisions cannot be justly applied if they have not been
previously promulgated.59

To better understand the true nature of an ex post facto law and its
implications, relevant case laws past and present are at hand. The Court
has consistently cited the landmark case of Calder v. Bull60 whenever this
legal term needs expounding. An ex post facto law is one —

(a) which makes an act done criminal before the passing of the law
and which was innocent when committed, and punishes such
action; or
(b) which aggravates a crime or makes it greater than when it was
committed; or
(c) which changes the punishment and inflicts a greater punishment
than the law annexed to the crime when it was committed.
(d) which alters the legal rules of evidence and receives less or
different testimony that the law required at the time of the
commission of the offense on order to convict the defendant.

58
Laceste v. Santos, supra.
59
Salvador v. Mapa, supra.
60
3 US 386 - Supreme Court 1798, as cited in Lacson v. The Executive Secretary, G.R. No. 128096,
January 20, 1999

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 Retroactive Effect of Penal Laws: Challenging the Observance of
the Ex Post Facto and Nullum Crimen Principles in this Day and Age

(e) Every law which, in relation to the offense or its consequences,

alters the situation of a person to his disadvantage.

Two more were added to the list, namely:

(f) 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;
(g) deprives a person accused of 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.

Former Associate Justice Samuel Chase in that case opined that “[e]very
law that takes away, or impairs, rights vested, agreeably to existing laws,
is retrospective, and is generally unjust, and may be oppressive; and it is a
good general rule, that a law should have no retrospect: but there are
cases in which laws may justly, and for the benefit of the community, and
also of individuals, relate to a time antecedent to their commencement; as
statutes of oblivion, or of pardon.”61

As a matter of justice which must regulate all elements of a criminal

action, the accused must be given the benefit of the provisions of a new
law when more favorable to him and, unless there should be final and
conclusive judgment at the time, and in matters of prescription when less
severe, the new law should be applied. The same principle applies when
the modifications introduced by the law refer to the prescription of the
penalty, because in its substance the prescription of the penalty is
equivalent to the prescription of the criminal action.62

61
Ibid.
62
Fiore, P., supra.

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 Retroactive Effect of Penal Laws: Challenging the Observance of
the Ex Post Facto and Nullum Crimen Principles in this Day and Age

a. On the Rappler case

Does the ex post facto principle apply to the Rappler case? Based on the
lower court’s decision, it would seem not. Since the “republication”
occurred during the effectivity of the Cybercrime Prevention Act of 2012,
it cannot be said that the law was retroactively applied. It was this
element of libel as incorporated in its newly minted cyber counterpart that
caused confusion among legal experts and authorities and generated
mixed reactions from the public. Per Judge Montesa, the fact that the
earlier article dated May 29, 2012 can no longer be found online makes
the editing on February 19, 201463 a “republication,” which is now
punishable as far as the Cyber Law is concerned with respect to the
“multiple publication”64 rule. But this interpretation is somewhat, if not
wholly, problematic, considering the world’s lived reality since the dawn
of the World Wide Web. Online contents are in fact digitally archived on
a regular basis and a quick search via the Wayback Machine can take
users “back in time” to see the erroneous, uncorrected version of the
offending – but then not yet criminal – report65 as they wish.

As described in Internet Archive v. Shell,66 Internet Archive is a San

Francisco, California non-profit organization devoted to preserving a
comprehensive record of all websites, documents and other information
contained on the internet as a resource for future generations. It employs
a technology called the Wayback Machine to systematically browse the
entire World Wide Web, reproducing content from websites and placing

63
See Santos Jr., R. CJ using SUVs of ‘controversial’ businessmen. Rappler.
https://www.rappler.com/newsbreak/cj-using-suvs-of-controversial-businessmen
64
Soriano v. IAC, supra.
65
See how the article CJ using SUVs of ‘controversial’ businessmen looked in the Rappler website on
May 30, 2012, as archived by the Wayback Machine:
https://web.archive.org/web/20120530013531/http://www.rappler.com/newsbreak/6061-cj-using-suvs-
of-controversial-businessmen
66
505 F. Supp. 2d 755 - Dist. Court, D. Colorado 2007

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 Retroactive Effect of Penal Laws: Challenging the Observance of
the Ex Post Facto and Nullum Crimen Principles in this Day and Age

them in an internet archive. The Wayback Machine seeks to catalogue all

websites on the internet and currently has a database spanning more than
a decade.67

There is actually an extensive discussion as well on the issue of

prescription in the aforementioned cyber libel decision, the point of
which anchors itself on the fact that since R.A. No. 10175 imposes a
penalty for cyber libel68 one degree higher than that which is prescribed
for ordinary libel69 under the Penal Code (punishable by up to 6 years)
and the same does not provide for a specific prescriptive period, the
period stated in Act 332670 shall apply:

“Section 1. Violations penalized by special acts shall, unless

otherwise provided in such acts, prescribe in accordance with the
following rules:

xxx

(d) after twelve years for any other offense punished by

imprisonment for six years or more xxx”

This is crucial because cyber libel, as held in Disini v. The Secretary of

Justice,71 is “actually not a new crime since Article 353, in relation to
Article 355 of the penal code, already punishes it.” Section 4(c)(4) of the
R.A. No. 10175 merely establishes the computer system as another means
of publication. Such an issue does give the impression that the decision
ultimately leaned toward strict legality, so debatable though it was as the
67
US v. Bansal, 663 F. 3d 634 - Court of Appeals, 3rd Circuit 2011
68
As defined in the Cybercrime Prevention Act of 2012, libel shall mean the unlawful or prohibited
acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a
computer system or any other similar means which may be devised in the future.
69
Article 90 of the Revised Penal Code states that the crime of libel or other similar offenses shall
prescribe in one year.
70
An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin to Run
71
G.R. No. 203335, February 11, 2014

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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Court has held in a number of cases that in the interpretation of the law
on prescription of crimes, that which is more favorable to the accused is
to be adopted. The said legal principle takes into account the nature of the
law on prescription of crimes which is an act of amnesty and liberality on
the part of the state in favor of the offender.72 Maybe it is true that
morality can have no special exemption for those who “commit the oldest
sins the newest kind of ways,” as Glanville Williams put it.73

b. Exceptional circumstances
If punishment is viewed as society’s retribution for moral wrongdoing,
then retroactivity can be justified, the nullum crimen principle relaxed
more so. Punishing previous wrongdoers, however, would most likely
have no deterrent effect upon future wrongdoers. It has been argued
throughout history that the making of retroactive laws should be allowed
in “exceptional circumstances.” Proponents of retrospectivity argue that a
valid exception to the rule is in situations where the wrongdoer’s acts or
omissions were morally wrong, though legal at the time that they were
committed, that is, where the wrongdoer has transgressed the “natural
law” or that which is based on a close observation of human nature, and
based on values intrinsic to human nature that can be deduced and applied
independent of positive law. This propounds the theory that the nullum
crimen sine lege principle as the idea of legality may be trumped by the
doctrine of substantive justice.

People v. Pacificador, G.R. No. 139405, March 13, 2001

72

Popple, J. (1989) The Right to Protection from Retroactive Criminal Law. Australian National
73

University. http://users.cecs.anu.edu.au/~James.Popple/publications/articles/retroactive/clj.pdf

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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The infamous Nuremberg trials,74 remarkably, applied international law

retrospectively. Before the trials, lower-ranking soldiers could claim that
in following orders from their superiors they were not breaking any law.
At the trials they were told that their actions were crimes against
humanity: that their actions were criminal even though they were not in
breach of international law as settled at the time that their acts were
committed.75

The Judgment of the International Military Tribunal for the Trial of

German Major War Criminals76 dealt with the matter in some detail
regarding the crime of aggression. It held that the legality principle was
not binding upon it as a matter of strict law. In a famous passage, it
observed that

“[t]he maxim ‘nullum crimen sine lege’ is not a limitation of

sovereignty but is in general a principle of justice. To assert that it
is unjust to punish those who in defiance of treaties and assurances
have attacked neighbouring states without warning is obviously
untrue for in such circumstances the attacker must know that he is
doing wrong, and so far from it being unjust to punish him, it
would be unjust if his wrong were allowed to go unpunished.”

Several eminent jurists criticized the Nuremberg trials for taking steps
that were said to go beyond existing international law at the time. It is
clear that the principle of non-retroactivity was ignored on the finding
that all the defendants there found guilty were clearly guilty of war

74
The Nurember trials were a series of military tribunals held following World War II by the Allied
forces under international law and the laws of war. The trials were most notable for the prosecution of
prominent members of the political, military, judicial, and economic leadership of Nazi Germany, who
planned, carried out, or otherwise participated in the Holocaust and other war crimes. The trials were
held in Nuremberg, Germany, and their decisions marked a turning point between classical and
contemporary international law.
75
Popple, J., supra.
76
30 September and 1 October 1946 172; ‘Nuremberg Judgment’

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 Retroactive Effect of Penal Laws: Challenging the Observance of
the Ex Post Facto and Nullum Crimen Principles in this Day and Age

crimes in the traditional sense, a ruling which was justified by the

reasoning that the acts of the Nazis were inherently immoral that
punishing the same could not have been unjust.

c. On the ILOVEYOU scandal

The damage and trauma caused worldwide by the ILOVEYOU computer
worm were massive and harrowing.77 In many countries its creator would
have ended up in jail, but the Philippines did not have laws governing
computer espionage at the time the cyber chaos transpired, leaving Onel
de Guzman a freeman to date. There is no denial that like many other
attacks in Internet history, the “Love Bug” outbreak was serious and
costly. The events and responses spawned by ILOVEYOU demonstrate
both the challenge of providing timely warnings against information-
based threats and the increasing need for the development of national
warning capabilities78, forcing the Philippine Congress to not only
reassess the applicability of the country’s turn-of-the-century Revised
Penal Code to high-tech crimes, but also to draft new laws specifically to
address them. Why R.A. No. 879279, which was signed shortly following
the incident, was not applied retroactively despite the appalling cyber
injuries the virus had caused is not for this essay to resolve, but it is for
the ever-dynamic concept of morality and the firmer – strict to be precise
– characteristic of law to refine. What is clear is that there being no law
which punishes the act which was innocent when done, there was not any
crime to speak of. The question, nonetheless, is: was it not a circumstance
so exceptional in the last two decades?

77
See Knight, P. ILOVEYOU: Virus, paranoia, and the environment of risk.
https://doi.org/10.1111/j.1467-954X.2000.tb03518.x
78
See Brock Jr., J.L. Critical Infrastructure Protection "ILOVEYOU" Computer Virus Highlights Need
for Improved Alert and Coordination Capabilities. Testimony Before the Subcommittee on Financial
Institutions, Committee on Banking, Housing and Urban Affairs, U.S. Senate.
https://apps.dtic.mil/sti/pdfs/ADA377465.pdf
79
Electronic Commerce Act of 2000

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 Retroactive Effect of Penal Laws: Challenging the Observance of
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Conclusion
In this day and age, the lack of clarity on the limitations of the non-
retroactivity law calls for a closer inspection and assessment by people in
authority. Sentencing severity or leniency has important ramifications on
all aspects of criminal justice system.80 As more and more violative acts
emerge in the 21st century upon which measures have to be imposed, the
challenge to preserve the very basic tenet of interpretation against ex post
facto application and the widely recognized nullum crimen sine lege
principle also becomes significant.

There have been instances as discussed where, in a country which claims

to espouse the right to protection from retroaction of laws as being
fundamental, disparate choices have been upheld. While such right is
typically qualified by the proviso that the protection does not apply to
acts or omissions which are criminal according to the general principles
of law recognized by the community of nations, the case of de Guzman
says otherwise. Specific technical arguments will be raised and
painstakingly argued by the parties in the currently appealed Rappler case,
and it is no surprise if, among the questions to be resolved, will be
whether there was ex post facto application of R.A. No. 10175 and
whether years-old online evergreen articles do become subject of cyber
libel if updated any day now. Indeed, the Philippine penal law, with
respect to the principle of non-retroactivity, still has a long way to go.

80
Endo, G. Nullum Crimen Nulla Poena Sine Lege Principle and the ICTY and ICTR. Quebec Journal
of International Law. https://www.sqdi.org/wp-content/uploads/15.1_-_endo.pdf

27