PRESIDENTIAL AD HOC V. DESIERTO (CONSTITUTIONAL, ADMINISTRATIVE)

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;
2. which aggravates a crime or makes it greater than it was when committed;
3. which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed;
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 exercised was lawful; or
6. 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 proscription of ex post facto laws is aimed against the retrospectivity of penal laws. Penal laws are acts of the legislature which prohibit certain acts ad establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment.

AO No. 13 does not mete out a penalty for the act of granting behest loans. It merely creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans and provides the frame of reference in determining the existence of behest loans. Not being penal laws, AO No 13 and Memo Order No. 61 cannot be characterized as ex post facto laws.

Case law has it that the determination of probable cause against those in public office during a preliminary investigation is a function that belongs to the Office of the Ombudsman. The Ombudsman is empowered to determine, in the exercise of his discretion, whether probable cause exists and to charge the person believed to have committed the crime as defined by law. As a rule, courts should not interfere with the Ombudsman's investigatory power, exercised through the Ombudsman Prosecutors, and the authority to determine the presence or absence of probable cause, except when the finding is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.

For one to have violated Section 3(e) of RA 3019, the following elements must be established:

1. the accused must be a public officer discharging administrative, judicial, or official functions;
2. he must have acted with manifest partiality, evident bad faith, or inexcusable negligence; and
3. he must have caused undue injury to any party, including the government or given any private party unwarranted benefits, advantage, or preference, in the discharge of his functions.

Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law. It is required that the act constitutive of bad faith or partiality must, in the first place, be evident or manifest, while the negligent deed should be both gross and inexcusable. Further, it is necessary to show that any or all of these modalities resulted in undue injury to a specified party.

On the other hand, to be listed under Section 3(g), there must be a showing that private respondents entered into a grossly disadvantageous contract on behalf of the government.

Petitioner did not satisfy either criterion.