[ANALYSIS | Deep Dive] Maria Ressa case and the big chill

The arrest on February 13 of Rappler’s CEO and executive editor Maria Ressa for cyber libel brings front and center the constitutional prohibition against ex post facto laws.

“With retroactive force,” an ex post facto law, or the application of a law ex post facto, violates due process because it imposes a burden that was not present before the law was passed, makes an existing burden heavier retroactively, or criminalizes conduct that was innocent when done.

This week, we take a Deep Dive into ex post facto laws, the reason behind the prohibition, and why the charge against Maria Ressa and former Rappler researcher Reynaldo Santos Jr is unconstitutional for being an ex post facto application of the Cyberbrime Act of 2012.

Constitutional, statutory, and jurisprudential ban

Article III, sec. 22 of the 1987 Constitution expressly prohibits the passage of an ex post facto law in language that is unmistakably plain: “No ex post facto law…shall be enacted.”

An ex post facto law is one that is retroactive in application and prejudicial in effect, i.e., operating in the present, it reaches out to past conduct, and imposes heavier burdens intended for future transgressions.

The Supreme Court in In re: Kay Villegas Kami (G.R. No. L-32485, 1970) has defined an ex post facto law as one which:

• makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; 
• aggravates a crime, or makes it greater than it was, when committed; 
• changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 
• alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 
• assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and 
• 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 Revised Penal Code expressly disallows an ex post facto application of penal laws, i.e., laws that provide for penalties found either in the Revised Penal Code or special penal statutes, in language that, again, is too plain to be misunderstood.

Article 22 provides that “(p)enal laws shall have a retroactive effect [only] in so far as they favor the person guilty of a felony, who is not a habitual criminal.”

Thus, if the retroactive application of a law will prejudice the accused, e.g., make criminal an act done before the passage of the law and which was innocent when done, and punish such act; aggravate a crime, or make it greater than it was, when committed; or change the punishment and inflict a greater punishment than the law annexed to the crime when committed, then the application of that law is ex post facto and unconstitutional.

In People v. Ringor, the Court applied Article 22 of the Revised Penal Code and applied an amendment to Presidential Decree No. 1866, the law punishing illegal possession of firearms, ammunition, and explosives, both prospectively (when it did not benefit the accused) and retroactively (when it did).

This trifecta – Constitution, statute, and jurisprudence – pretty much makes it clear to every lawyer that a penal statute cannot be made to retroact when it prejudices the accused. 

Cyber libel equals rebellion?

In the latest prosecution by the administration against Maria Ressa, however, the Secretary of Justice chose to treat a post on Rappler made in May 2012 as cyber libel by retroactively considering that post as libelous under the Cybercrime Law, which took effect in September 2012. 

There are things that are so basic that it is hard to offer any further argument in its favor. The ban on ex post facto laws and ex post facto application of penal laws is one such example. 

It is difficult, almost impossible, to imagine the extent of mental contortion needed to come up with a theory to justify an otherwise patent ex post facto application of the Cybercrime Law. But somehow it happened with the “multiple republication” and “continuing crime” theories advanced by the Department of Justice (DOJ). 

“Multiple republication” or “continuing crime” are not principles that apply to libel, which is defined Articles 355 to 362 of the Revised Penal Code. Neither have they been held to apply to cyber libel as well as to laws that define and regulate offenses committed online.

The “continuing crime” principle was cited by the Supreme Court in Umil v. Ramos to justify warrantless arrests made for the former offense of subversion under RA 1700 (now repealed) and rebellion under Article 134 of the Revised Penal Code. In that case, the Court held that subversion, rebellion, and conspiracy and proposal to commit such felonies were continuing offenses, thus justifying warrantless arrests under Rule 113, sec. 5(a).

Deep freeze

Is the DOJ saying that cyber libel is on the same level as rebellion such that it would go so far as to characterize cyber libel as a “continuing offense”?

Should the theories of “multiple republication” or “continuing crime” be ruled by the court to be applicable to cyber libel, that is essentially what it would amount to. Moreover, it would not only validate the ex post facto application of a penal law but also render Article 22 of the Revised Penal Code unavailing. 

In the days to come, the theory of the DOJ’s theories on cyber libel being a “continuing crime” and its prescriptive period being subject to “multiple republication” will be tested before the regional trial court that will try the case against Ressa and Santos, the very court that found probable cause to issue a warrant against her.

Should the trial court sustain the DOJ’s theory and allow the prosecution to move forward, it would not only be a big chill to press freedom, it would be the deep freeze for the constitutional guarantee against ex post facto laws. – Rappler.com