The Court thanks Petitioner Roavin and amicus curiae Welly for their briefs and would welcome further briefing focused on the following questions.
A wide range of sources describe an ex post facto law or application of law as operating ‘retroactively.’1 Most sources assert that retroactivity should be judged against the time of the alleged crime; in other words, “the relevant point in time for determining whether a law applies retroactively is the time the offense was committed.”2 Others, however, contend that retroactivity can be judged relative to the time the law in question was enacted; that is, a law that “deprives persons accused of crime of some lawful protection to which they have become entitled”3 is an ex post facto law even if such protection was not present at the time of the alleged crime but rather gained afterward.
- To what extent do generally understood definitions of ex post facto applications of law — in either typical usage or in regional usage specifically4 — provide for a law to be considered retroactive if it solely impacts legislation or legislative acts which were not enacted at the time of the alleged crime?
- To what extent do generally understood principles of ex post facto prohibitions comport with the revocation of a lawful protection after it has been gained?5
The Charter provides that in resolving contradictions between itself and constitutional laws, the High Court should “maintain[…] the least amount of disruption to the intended purposes of the contradictory parts.”6
- Petitioner has argued that the repeal of an amnesty is unconstitutional. Does every provision of the Resolution to Restore Regional Accountability (“the Resolution”) operate to repeal the amnesty, or does the Resolution contain any provisions that are not ex post facto (in any application)?
- Suppose the Court were to find that the Resolution is unconstitutional in some applications but constitutional in others. Opinions delivered by the Court for legal questions carry “the full force of law.”7 Is this force sufficient for an opinion to restrict the scope of the Resolution to constitutional applications only, or must the Court void the Resolution in its entirety, and thus also prevent its constitutional applications, in order to prevent such unconstitutional applications?
1 See Merriam-Webster, Inc., Ex Post Facto Definition & Meaning; Encyclopædia Britannica, Inc., Ex Post Facto Law; Wikipedia contributors, Ex Post Facto Law; Legal Information Institute, Ex Post Facto; Calder v. Bull, 3 Dall. 386, 391, noting that “[e]very ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law.”
2 Legal Information Institute, ArtI.S9.C3.3.3 Retroactivity of Ex Post Facto Laws. See also Calder, supra, at 390; Weaver v. Graham, 450 U.S. 24, 30, noting that “[c]ritical to relief under the Ex Post Facto Clause is […] the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” (emphasis supplied).
3 Black’s Law Dictionary (5th ed.), p. 520, via People v. Sandiganbayan, 286 Phil. 347. See also Stogner v. California, 539 U.S. 607, 613–614, describing Calder’s second category of ex post facto laws as “applying where a new law inflicts a punishment upon a person not then subject to that punishment, to any degree.”
4 Charter Art. III, § 2 has remained unchanged and, to the Court’s present knowledge, not directly debated, since its introduction in 2016 (sandaoguo, Working Group Drafts). Petitioner and amici curiae, however, may find use in the legislative record surrounding the first introduction of ex post facto protections into the Charter (Hileville, Amendment to the Bill of Rights), and if felt to be relevant, are welcome to brief the Court on the extent, if any, to which said record should be instructive to the Court’s present opinion.
5 See Weaver, supra, at 28–29, noting that the ex post facto prohibition “assure[s] that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed;” cf. Stogner, supra, at 611, noting the importance of “‘fair warning’ […] that might have led [the defendant] to preserve exculpatory evidence.” See also Calder, supra, at 391, arguing “I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction.”
6 Art. VII, § 5.
7 Judicial Act, Art. 4, § 3.