On October 8, 1992 then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, in view of allegations of loans, 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.
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.
Several loan accounts were referred to the Committee for investigation, including the loan transactions between 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, because the stockholders and officers of PEMI were known cronies of then President Ferdinand Marcos; PEMI was granted a foreign currency loan of $19,680,267.00 or ₱146,601,979.00, and it was released despite non-compliance with the conditions imposed by DBP, the loan had no sufficient collaterals and PEMI was undercapitalized at the time the loan was granted.
Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-Finding Committee, and representing the Presidential Commission on Good Government (PCGG), filed with the Ombudsman a sworn complaint for violation of Sections 3(e) and (g) of R.A. No. 3019, or the Anti-Graft and Corrupt Practices Act, against the respondents Placido I. Mapa, Jr.,et al.
The Ombudsman dismissed the complaint holding that the offenses charged had already prescribed.
In the case at bar, the subject financial accommodations were entered into during the period of 1978 to 1981. 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.
It ruled that if Administrative Order No. 13 and Memorandum Order No. 61 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 Committee filed a Motion for Reconsideration, but the Ombudsman denied it.
Hence, this petition.
Whether or not administrative order no. 13 and memorandum order no. 61 are ex-post facto laws.
We hold that Administrative Order No. 13 and Memorandum Order No. 61 are not ex post facto laws.
An ex post facto law has been defined as one —
(a) which makes an 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 was committed; or
(d) 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.
This Court added two (2) more to the list, namely:
(e) 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; or
(f) 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.
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.
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.