SALVADOR V. MAPA (CONSTITUTIONAL, CRIMINAL, REMEDIAL)

Commenting on the petition, respondents 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 the SC.

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 imputed 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. In previous ruling, we have treated differently labeled actions as special civil actions for certiorari under Rule 65 for reasons such as justice, equity, and fair play.

The issue of prescription has long been settled by this Court in the Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto where the Court explained that the counting of the prescriptive period commenced from the date of discovery of the offense. This is now a well-settled doctrine which the court has applied in subsequent cases involving the PCGG and the Ombudsman.

Since the prescriptive period commenced to run on the date of the discovery of the offenses, ans since discovery could not have been made earlier than 8 October 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 14 October 1996.

Even the Ombudsman in its Manifestation and Motion conceded that the prescriptive period commenced on the date the Committee discovered the crime, and not from the date the loan documents were registered with the RD.

Likewise, we cannot sustain the Ombudsman's declaration that Administrative Order 13 and Memorandum 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 in favor of constitutionality. To doubt is to sustain. 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.

Further, where petitioner raised the issue of constitutionality, we had the 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 13 and Memorandum Order 61 are not ex post facto laws.

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.

This Court added two more to the list, namely:

1. 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
2. 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 do not come within the shadow of this definition. Administrative Order 13 creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, and provides for its composition and functions.

Memorandum Order 61 merely provides a frame of reference for determining behest loans. Not being penal laws, Administrative Order 13 and Memorandum Order 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.

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.