Moving Forward from the Historically Incongruous Treatment...
Transcript of Moving Forward from the Historically Incongruous Treatment...
Moving Forward from the Historically Incongruous
Treatment of Mens Rea in Philippine Criminal Law
Allan Chester B. Nadate*
INTRODUCTION .......................................................................................... 90 I. THE CONTEMPORARY ARTICULATION OF THE “MALA DICHOTOMY” .. 94
A. Characterizing the Dichotomy ................................................... 94 B. The Jurisprudential History of the “Mala Dichotomy” ........... 103
1. The Evolution of Case Law from Go Chico...................... 104 2. The Misconception as Contained in Criminal Law
Commentaries .................................................................... 112 II. THE INCONGRUOUS TREATMENT OF MENS REA ................................ 116
A. The Inconsistency in Code-Special Law Interpretation.............117 B. Overcriminalization from an Overzealous Reading? ............... 124
III. THE RATIONAL APPROACH TO MENS REA INTERPRETATION ............. 131 A. Reclaiming the Proper Meaning of the “Mala Dichotomy” .... 132 B. A Radical Reconstruction of Case Law .................................... 135
CONCLUSION............................................................................................ 136
INTRODUCTION
More than a century ago, a Chinese resident displayed several small
medallions containing the face of the revolutionary Tagalog leader, General
Emilio Aguinaldo, in his store in Manila.1 He bought these items together
with a stock of goods in a public auction conducted by a court sheriff just
* The author works in human rights advocacy, specializing in the protection and
promotion of the human right to the highest attainable standard of health. He received his
nursing and law degrees from the University of the Philippines. The author thanks
Professor Dante B. Gatmaytan for his feedback on earlier versions of the Article;
Professor Rowena E.V. Daroy-Morales and Darwin P. Angeles, whose supervision in the
University of the Philippines Office of Legal Aid inspired the author’s ongoing research
in criminal justice reform; and M. Justin Homma, Toan Nguyen, Ian Tapu, Evan Oue,
Miranda Steed, and the Board of the Asia-Pacific Law and Policy Journal for their
editorial support. All views and errors in this paper are the author’s.
1 “[O]n or about the 4th day of August, 1908, in the city of Manila, the appellant
Go Chico displayed in one of the windows and one of the show cases of his store, No. 89
Calle Rosario, a number of medallions, in the form of a small button, upon the faces of
which were imprinted in miniature the picture of Emilio Aguinaldo, and the flag or
banner or device used during the late insurrection in the Philippine Islands to designate
and identify those in armed insurrection against the United States.” United States v. Go
Chico, G.R. No. 4963, 14 Phil. 128, 130 (S.C., Sept. 15, 1909) (Phil.).
2019 Nadate 91
the day before.2 Being the aspiring entrepreneur that he was, he laid all of
his purchases before his store window for customers to see and, hopefully,
buy.3 Little did he know that displaying these medallions was illegal4 and
that he would be imprisoned for at least three months and fined with what
then was a staggering cost of 500 pesos for the particularly simple and
seemingly innocent offense of “expos[ing], or caus[ing] or permit[ting]
[them] to be exposed, to public view.”5
It turned out that these metallic curiosities contained a “flag or
banner or device used during the late insurrection in the Philippine Islands
to designate and identify those in the armed insurrection.”6 So while, at that
time, General Aguinaldo had long been captured in Palanan, Isabela, his
miniature face on the buttons, methodically laid out for the public, was
enough to constitute a crime. And for this, the Court of First Instance
adjudged the store owner guilty beyond reasonable doubt for the offense.7
2 “On the day previous to the one above set forth the appellant had purchased the
stock of goods in said store, of which the medallions formed a part, at a public sale made
under authority of the sheriff of the city of Manila.” Id.
3 “On the day in question, the 4th of August aforesaid, the appellant was
arranging his stock of goods for the purpose of displaying them to the public and in so
doing placed in his showcase and in one of the windows of his store the medallions
described.” Id.
4 “The appellant was ignorant of the existence of a law against the display of the
medallions in question and had consequently no corrupt intention.” Id.
5 “Any person who shall expose, or cause or permit to be exposed, to public
view on his own premises, or who shall expose, or cause to be exposed, to public view,
either on his own premises or elsewhere, any flag, banner, emblem, or device used during
the late insurrection in the Philippine Islands to designate or identify those in armed
rebellion against the United States, or any flag, banner, emblem, or device used or
adopted at any time by the public enemies of the United States in the Philippine Island for
the purpose of public disorder or of rebellion or insurrection against the authority of the
United States in the Philippine Islands, or any flag, banner, emblem, or device of the
Katipunan Society, or which is commonly known as such, shall be punished by a fine of
not less that five hundred pesos for more than five thousand pesos, or by imprisonment
for not less than three months nor more than five years, or by both such fine and
imprisonment, in the discretion of the court.” An Act to Prohibit the Display of Flags,
Banners, Emblems, or Devices used in the Philippine Islands for the Purpose of Rebellion
or Insurrection Against the Authority of the United States and the Display of Katipunan
Flags, Banners, Emblems, or Devices, and for Other Purposes, Commission Act No.
1696, § 1, (Aug. 23, 1907) (Phil.).
6 Go Chico, 14 Phil. at 130.
7 “The defendant was tried in the Court of First Instance of the city of Manila on
the 8th day of September, 1908. After hearing the evidence adduced the court adjudged
the defendant guilty of the crime charged and sentenced him under that judgment to pay a
fine of P500, Philippine currency, and to pay the costs of the action, and to suffer
subsidiary imprisonment during the time and in the form and in the place prescribed by
92 Asian-Pacific Law & Policy Journal [Vol. 20:3
Distraught at a sentence which he saw as both unfounded and
unreasonable, the Chinese resident, Go Chico, sought to appeal his
conviction to the colonial Supreme Court,8 only to lose.
Under the pen of Justice Sherman Moreland, Go Chico found little
solace. According to the Supreme Court, his defense that he had no criminal
intent in displaying his products was unavailing. The Court found that “[t]he
act [itself] is the crime”9 and, the act having been consummated, “[n]othing
more is required to commit the crime.”10 The Court further reasoned:
In the opinion of this court it is not necessary that the
appellant should have acted with the criminal intent. In
many crimes, made such by statutory enactment, the
intention of the person who commits the crime is entirely
immaterial. This is necessarily so. If it were not, the statute
as a deterrent influence would be substantially worthless. It
would be impossible of execution. In many cases the act
complained of is itself that which produces the pernicious
effect which the statute seeks to avoid. In those cases the
pernicious effect is produced with precisely the same force
and result whether the intention of the person performing
the act is good or bad. The case at bar is a perfect
illustration of this. […]
It is clear from the authorities cited that in the act under
consideration the legislature did not intend that a criminal
intent should be a necessary element of the crime. The
statutory definition of the offense embraces no word
implying that the prohibited act shall be done knowingly or
willfully. The wording is plain. The Act means what it
says. Nothing is left to the interpretation.11
The Court made extensive use of earlier American decisions12 such
as those of the Court of Appeals of the State of New York13 to drive the point
law until said fine should be paid. From that judgment and sentence the defendant
appealed to this court.” Id.
8 “The appellant rests his right to acquittal upon two propositions: First. That
before a conviction under the law cited can be had, a criminal intent upon the part of the
accused must be proved beyond a reasonable doubt.” Id. at 131.
9 Id. at 138.
10 Id.
11 Id. at 131, 137-38.
12 Id. at 133.
13 E.g., Gardner v. People, 62 N.Y. 299 (1875); Fiedler v. Darrin, 50 N.Y. 437
(1872).
2019 Nadate 93
that, “[s]uch mistakes do not excuse the commission of prohibited acts”14
because, “[t]he rule on the subject appears to be, that in acts mala in se, the
intent governs but in those mala prohibita, the only inquiry is, has the law
been violated?”15 From this pronouncement, the idea of malum in se16 and
malum prohibitum17 was born in the Philippine criminal legal system.
Henceforth, it became more and more ingrained, only to evolve from its
sensible 1909 conception to an incongruous, inconsistent, and sweeping
rule18 that now scantly resembles the Go Chico holding.19
This Article attempts to correct the divergence in Philippine penal
jurisprudence from the original holding in Go Chico. In particular, it traces
the theory’s adoption from early colonial case law and its usage across
Philippine Supreme Court decisions, including in contemporary cases. This
frames the scope and legal effects of the malum in se/malum prohibitum
distinction or dichotomy and draws out significant doctrinal conflicts in its
construction and application. Furthermore, by contrasting this principle
with American criminal law, this Article argues that the necessity of reading
the element of criminal intent in penal statutes is compelled by due process.
Ultimately, this Article seeks to present the proper treatment of mens
rea20 in this jurisdiction and demonstrate the need to revisit the
14 Go Chico, 14 Phil. at 133.
15 Id.
16 Lexicons generally define a malum in se is “an offense that is evil or wrong
from its nature or by the natural law irrespective of statute.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1369 (Merriam-
Webster Inc. 2002). Compare with BRYAN A. GARDNER, ED., BLACK’S LAW DICTIONARY
971 (17th ed.1999) (“A crime or an act that is inherently immoral, such as murder, arson,
or rape.”); 26 WORDS AND PHRASES 343 (1953) (“‘Malum in se’ requires the commission
of a crime that is not merely prohibited by statute, but is criminal by its inherent
nature.”).
17 In contrast to crimes mala in se, a crime malum prohibitum is “an offense
prohibited by statute but not inherently evil or wrong.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1369 (Merriam-
Webster Inc. 2002). Compare with BRYAN A. GARDNER, ED., BLACK’S LAW DICTIONARY
971 (17th ed.1999) (“An act that is a crime merely because it is prohibited by statute,
although the act itself is not necessarily immoral.”); 26 WORDS AND PHRASES 345 (1953)
(“A act ‘malum prohibitum’ is an act made wrong by legislation, a forbidden evil.”);
FEDERICO B. MORENO, PHILIPPINE LAW DICTIONARY 573 (3RD ED. 1988) (“[A]n act
which is not inherently immoral but becomes so because its commission is expressly
forbidden by positive law.”). The definitions of both terms under Philippine law are
further described in Part I(B)(2), infra.
18 See infra Part II(A).
19 See infra Part I(B)(1).
20 This paper does not attempt to dissect the treatment of the whole concept of
mens rea in Philippine jurisprudence, such as general versus specific intent, except
insofar as the utilization of the mala dichotomy is concerned. For comprehensive
94 Asian-Pacific Law & Policy Journal [Vol. 20:3
jurisprudential position that the “mala dichotomy” is tied with whether a
crime is codified in the Philippines’ Revised Penal Code21 or not. Criminal
intent should be read as a requisite in the statutory definitions of offenses
and only in cases where expressly removed by legislative fiat may mens rea
and the corollary defense of good faith be considered immaterial.
I. THE CONTEMPORARY ARTICULATION OF THE “MALA
DICHOTOMY”
The jurisprudential treatment of mens rea or criminal intent in
Philippine law has been consistently and generally articulated in three
logical levels. First, there are distinctions between two sets of penal laws:
(1) offenses that are codified in the Revised Penal Code and (2) offenses
defined outside the Code, or so called “special laws.”22 Second, special laws
are crimes mala prohibita.23 Third, in crimes mala prohibita, intent or mens
rea is immaterial and so, too, is the defense of good faith or lack of criminal
intent.24 Packaged together, the rule on mens rea under Philippine law can
be read as such: criminal intent is immaterial for a finding of conviction
under special laws.
A. Characterizing the Dichotomy
Consider, for instance, the significant intellectual property law case
of ABS-CBN Corporation v. Gozon25 which involved the two largest
television networks in the Philippines. In ABS-CBN Corp., the Supreme
Court addressed the issue of whether there was probable cause to charge
several executive officers and employees of GMA Network, Inc. or GMA-
historical and comparative legal discussions on mens rea, see Eugene J. Chesney, The
Concept of Mens Rea in the Criminal Law, 29 AM. INST. CRIM. L. & CRIMINOLOGY 627
(1938-1939); Glanville Williams, The Mental Element in Crime, 27 REVISITA JURIDICA
DE LA UNIVERSIDAD DE PUERTO RICO 193 (1957-1958); Note, Mens Rea in Federal
Criminal Law, 111 HARV. L. REV 2402 (1997-1998); Johan D. Van der Vyer, The
International Criminal Court and the Concept of Mens Rea in International Criminal
Law, 12 U. MIAMI INT’L & COMP. L. REV. 57 (2004); Hans-Heinrich Jescheck, The
doctrine of mens rea in German criminal law – its historical background and present
state, 8 COMP. & INT’L L.J. SOUTHERN AFRICA 112 (1975).
21 Act No. 3815, as amended.
22 See infra Part I(B), and cited cases. “A special Penal law is understood to
mean any penal law punishing acts which are not treated and penalized by the Revised
Penal Code.” GUILLERMO B. GUEVARRA, PENAL SCIENCES AND PHILIPPINE CRIMINAL
LAW 24 (1974).
23 See infra Part I(A), and cited cases.
24 See infra Part I(A).
25 G.R. No. 195956, 753 SCRA 1 (S.C., Mar. 11, 2015) (Phil.).
2019 Nadate 95
7 with infringement under Republic Act No. 8293, the Intellectual Property
Code.
The controversy stemmed from GMA-7’s news coverage of the
homecoming of a Filipino overseas worker and hostage victim.26 According
to the complainant ABS-CBN Corp.’s allegation, it “conducted live audio-
video coverage of and broadcasted the arrival of [the victim] at the Ninoy
Aquino International Airport and the subsequent press conference”27 and it
“allowed Reuters Television Service […] to air the footages it had taken
earlier under a special embargo agreement.”28
As GMA-7 subscribes to Reuters, it received a live video feed of the
same coverage. The controversy happened when “GMA-7 immediately
carried the live news feed in its program ‘Flash Report,’ together with its
live broadcast.”29 But as GMA-7 later contended, it “did not receive any
notice,” nor was it “aware that Reuters was airing footages of ABS-
CBN.”30 It argued that its news control room staff “saw neither the ‘No
Access Philippines’ notice nor a notice that the video feed was under
embargo in favor of ABS-CBN.”31
Less than a month later, ABS-CBN Corp. filed a complaint for
copyright infringement under Sections 17732 and 21133 of the Intellectual
Property Code and, a few months after, the fiscal issued a decision finding
26 “Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi militants
and as a condition for his release, a demand was made for the withdrawal of Filipino
troops in Iraq. After negotiations, he was released by his captors and was scheduled to
return to the country in the afternoon of 22 July 2004. Occasioned by said homecoming
and the public interest it generated, both . . . GMA Network, Inc. . . . and [petitioner]
made their respective broadcasts and coverage of the live event.” Id. at 12.
27 Id.
28 Id.
29 Id. at 13.
30 Id.
31 Id.
32 On copyright or economic rights.
33 On the scope of rights.
96 Asian-Pacific Law & Policy Journal [Vol. 20:3
probable cause,34 which the Secretary of Justice affirmed.35 On review to
the Court of Appeals by petition for certiorari, the court struck down the
Secretary’s resolution, stating:
Verily, […] the act of petitioners in airing the five (5)
second footage was undeniably attended by good faith and
it thus serves to exculpate them from criminal liability
under the Code. While the Intellectual Property Code is a
special law, and thus generally categorized as malum
prohibitum, it bears to stress that the provisions of the Code
itself do not ipso facto penalize a person or entity for
copyright infringement by the mere fact that one had used a
copyrighted work or material.
Certainly so, in the exercise of one’s moral and economic
or copyrights, the very provisions of Part IV of the
Intellectual Property Code provide for the scope and
limitations on copyright protection under Section 184 and
in fact permit fair use of copyrighted work under Section
185. With the aforesaid statutory limitations on one’s
economic and copyrights and the allowable instances
where the other persons can legally use a copyrighted
work, criminal culpability clearly attaches only when the
infringement had been knowingly and intentionally
committed.36
ABS-CBN Corp. appealed to the Supreme Court and raised two
related questions.37 First, it asked, “whether a lack of knowledge that a
34 The Information read: “That on or about the 22nd of July 2004, in Quezon
City, Philippines, the above-named accused, conspiring together, confederating with and
mutually helping each other, being the Head of News Operations and the Program
Manager, respectively, for the News and Public Affairs Department of GMA Network,
Inc., did then and there, willfully, unlawfully and feloniously use and broadcast the
footage of the arrival of Angelo [d]ela Cruz at the Ninoy Aquino International Airport of
which ABS-CBN holds the exclusive ownership and copyright by then and there using,
airing, and broadcasting the said footage in its news program ‘FLASH REPORT’ without
first obtaining the consent or authority of said copyright owner, to their damage and
prejudice.” ABS-CBN Corp., 753 SCRA at 14-15.
35 The resolution was first reversed by Department of Justice Secretary Raul M.
Gonzalez, who ruled in favor of respondents and held that good faith may be raised as a
defense in the case. On June 29, 2010, however, Acting Secretary Alberto C. Agra issued
the Resolution that reversed the Gonzalez Resolution and found probable cause to charge
Dela Peña-Reyes and Manalastas for violation of the Intellectual Property Code. Id. at
15-17.
36 Id. at 18. Emphasis omitted in part and supplied in part.
37 “ABS-CBN’s Motion for Reconsideration was denied. It then filed its Petition
for Review before this court assailing the Decision and Resolution of the Court of
2019 Nadate 97
material is copyrighted is a defense against copyright infringement.”38
Second, it asked, “whether good faith is a defense in a criminal prosecution
for violation of the Intellectual Property Code.”39
In deciding the case, the Supreme Court, much like the Court of
Appeals, recalled the following principles on the malum prohibitum/in se
dichotomy:
The general rule is that acts punished under a special law
are malum prohibitum. “An act which is declared malum
prohibitum, malice or criminal intent is completely
immaterial.” […]
“Implicit in the concept of mala in se is that of mens rea.”
[…] Crimes mala in se presuppose that the person who did
the felonious act had criminal intent to do so, while crimes
mala prohibita do not require knowledge or criminal
intent[.]40
From these premises, the Court concluded that the “[r]espondents
cannot invoke the defense of good faith to argue that no probable cause
exists.”41 It characterized the nature the copyright infringement42 as a strict
Appeals. […] According to ABS-CBN, the Court of Appeals erred in finding that: a
motion for reconsideration was not necessary before a petition for certiorari could be
filed; the Department of Justice Secretary committed errors of jurisdiction since the Agra
Resolution was issued within its authority and in accordance with settled laws and
jurisprudence; and respondents were not liable for copyright infringement.” Id. at 19.
38 Id.
39 Id.
40 ABS-CBN Corp., 753 SCRA. at 63-65 (emphasis added) (citations omitted).
41 Id. at 62 (emphasis added).
42 This inquiry has been the subject of various discussions, see, e.g., Steven
Hetcher, The Immorality of Strict Liability in Copyright, 17 MARQ. INTELL. PROP. L. REV.
1 (2013); Geraldine Szott Moohr, Defining Overcriminalization Through Cost-Benefit
Analysis: The Example of Criminal Copyright Laws, 54 AM. U. L. REV. 783 (2005);
Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on
Morality, Harm, and Criminal Theory, 83 B.U. L. REV. 731 (2003); Sheldon M. Halpern,
Copyright Law in the Digital Age: Malum in Se and Malum Prohibitum, 4 MARQ.
INTELL. PROPL L. REV. 1 (2000).
98 Asian-Pacific Law & Policy Journal [Vol. 20:3
liability offense. Noting the opposite treatment43 from other jurisdictions,44
however, it justified:
Unlike other jurisdictions that require intent for criminal
prosecution of copyright infringement, the Philippines does
not statutorily support good faith as a defense. Other
jurisdictions provide in their intellectual property codes or
relevant laws that mens rea, whether express or implied, is
an element of criminal copyright infringement.45
The justification raises many issues. At this juncture, it begs the
questions: how about the words “aiding or abetting such infringement” in
Sub-section 217.1?46 Or Sub-section 217.3, which uses the terms “which he
knows, or ought to know”?47 Surely, how can someone aid or abet without
43 See, e.g., Mitchell E. Radin, The Significance of Intent to Copy in a Civil
Action for Copyright Infringement, 54 TEMPLE L. Q. 1 (1981); Robert Conley, Copyright
and Contributory Infringement, 23 IDEA: THE J. OF L. & TECH. 185 (1982); Robert C.
Denicola, Volition and Copyright Infringement, 37 CARDOZO L. REV. 1259 (2016). See
also Alfred C. Yen, Intent and Trademark Infringement, 57 ARIZ. L. REV. 713 (2015).
44 Decisions of foreign tribunals on cases involving laws from which certain
Philippine laws have been adopted have “persuasive force and effect in the
determination” of controversies regarding the domestic statutes. See, e.g., King v.
Hernaez, G.R. No. L-14859, 4 SCRA 792, 805 (S.C., Mar. 31, 1962) (Phil.).
45 ABS-CBN Corporation, 753 SCRA at 66. The Court premised the same on
this ground: “In the case of mala in se it is necessary, to constitute a punishable offense,
for the person doing the act to have knowledge of the nature of his act and to have a
criminal intent; in the case of mala prohibita, unless such words as ‘knowingly’ and
‘willfully’ are contained in the statute, neither knowledge nor criminal intent is necessary.
In other words, a person morally quite innocent and with every intention of being a law
abiding citizen becomes a criminal, and liable to criminal penalties, if he does an act
prohibited by these statutes. Hence, ‘[i]ntent to commit the crime and intent to perpetrate
the act must be distinguished. A person may not have consciously intended to commit a
crime; but he did intend to commit an act, and that act is, by the very nature of things, the
crime itself[.]’ When an act is prohibited by a special law, it is considered injurious to
public welfare, and the performance of the prohibited act is the crime itself.
“Volition, or intent to commit the act, is different from criminal intent. Volition
or voluntariness refers to knowledge of the act being done. On the other hand, criminal
intent — which is different from motive, or the moving power for the commission of the
crime— refers to the state of mind beyond voluntariness. It is this intent that is being
punished by crimes mala in se.” ABS-CBN Corporation, 753 SCRA at 65-66 (emphasis
supplied) (citations omitted).
46 “Any person infringing any right secured by provisions of Part IV of this Act
or aiding or abetting such infringement shall be guilty of a crime punishable by […]”
Intellectual Property Code, § 217.1.
47 “Any person who at the time when copyright subsists in a work has in his
possession an article which he knows, or ought to know, to be an infringing copy of the
work for the purpose of: (a) Selling, letting for hire, or by way of trade offering or
exposing for sale, or hire, the article; (b) Distributing the article for purpose of trade, or
2019 Nadate 99
the criminal intent of assisting in the furtherance of the crime?48 Does this
mean, therefore, that the principal is punished with a strict liability offense,
while those who aid or abet can put forth a defense of good faith? These
appear absurd. The Court, however, continued:
Because of the use of the word “knowingly” in Canada’s
Copyright Act, it has been held that copyright infringement
is a full mens rea offense.
In the United States, willful intent is required for criminal
copyright infringement. […] There is a difference,
however, between the required liability in civil copyright
infringement and that in criminal copyright infringement in
the United States. Civil copyright infringement does not
require culpability and employs a strict liability regime
where “lack of intention to infringe is not a defense to an
action for infringement.” […]
Thus, unless clearly provided in the law, offenses involving
infringement of copyright protections should be considered
malum prohibitum. It is the act of infringement, not the
intent, which causes the damage. To require or assume the
need to prove intent defeats the purpose of intellectual
property protection.49
Ostensibly, the Court concluded in this manner without referring to
legislative history, assuming merely that “[w]hen an act is prohibited by a
special law, it is considered injurious to public welfare, and the performance
of the prohibited act is the crime itself.”50 The Court added:
The law is clear. Inasmuch as there is wisdom in
prioritizing the flow and exchange of ideas as opposed to
rewarding the creator, it is the plain reading of the law in
conjunction with the actions of the legislature to which we
defer. We have continuously “recognized the power of the
legislature […] to forbid certain acts in a limited class of
for any other purpose to an extent that will prejudice the rights of the copyright owner in
the work; or (c) Trade exhibit of the article in public, shall be guilty of an offense and
shall be liable on conviction to imprisonment and fine as above mentioned.” Intellectual
Property Code, § 217.3 (emphasis added).
48 “A culpable mental state must be found for all offenses for which defendant is
to be held as aider and abettor.” 22 C.J.S. §31 (1989), citing State v. Workes, App., 689
S.W. 2d. 782 (Mo. Ct. App. 1985).
49 ABS-CBN Corporation, 753 SCRA at 67, 77 (emphasis added) (citations
omitted).
50 Id. at 65.
100 Asian-Pacific Law & Policy Journal [Vol. 20:3
cases and to make their commission criminal without
regard to the intent of the doer. Such legislative enactments
are based on the experience that repressive measures which
depend for their efficiency upon proof of the dealer’s
knowledge or of his intent are of little use and rarely
accomplish their purposes.”51
This is how the mala dichotomy works. It bisects Philippine
criminal law into two rather arbitrary and problematic constructs or
classification: acts punished under the Revised Penal Code or laws
amendatory thereto and acts punished by special law. Then, it applies the
sweeping and broad theory that special laws are mala prohibita crimes,
where intent is not material. Thus, because intent is not an element of the
crime, defenses such as good faith are not available to an accused at all.52
Similarly, consider another strange case, decided just a month after
ABS-CBN Corp.: Asistio v. People.53 This case involves another special law,
the Cooperative Code of the Philippines or Republic Act No. (RA) 6938.
The defendant was convicted under Section 46 of the said Act.54
Without going into the details of the case, the particular strangeness
comes from the following statements that the Supreme Court made to justify
51 Id. at 72 (emphasis added).
52 This Article does not delve into how intent must be construed from an act or
on the existence of particular or specific criminal intent (dolo specialis). The critique is
limited to the mode or analytical process of construing general criminal intent based on
the classification of offenses as codified or non-codified. For debates on the
terminological confusion of general-versus-specific intent, see, e.g., Gideon Yaffe,
Conditional Intent and Mens Rea, 10 LEGAL THEORY 273 (2004); David Crump, What
Does Intent Mean?, 38 HOFSTRA L. REV. 1059 (2010); Lloyd L. Weinreb, Manifest
Criminality, Criminal Intent, and the “Metamorphosis of Larceny,” 90 YALE L.J. 294
(1980).
53 G.R. No. 200465, 756 SCRA 256 (S.C., Apr. 20, 2015) (Phil.).
54 Section 46 of the Cooperative Code of the Philippines provides:
Directors, officers and committee members, who willfully and
knowingly vote for or assent to patently unlawful acts or who are guilty
of gross negligence or bad faith in directing the affairs of the
cooperative or acquire any personal or pecuniary interest in conflict
with their duty as such directors, officers or committee member shall be
liable jointly and severally for all damages or profits resulting
therefrom to the cooperative, members and other persons.
When a director, officer or committee member attempts to
acquire or acquires, in violation of his duty, any interest or equity
adverse to the cooperative in respect to any matter which has been
reposed in him in confidence, he shall, as a trustee for the cooperative,
be liable for damages and for double the profits which otherwise would
have accrued to the cooperative.
2019 Nadate 101
a joint conviction with Article 172, paragraph 2,55 of the Revised Penal
Code on the falsification of private documents, which was the means by
which the violation under Section 46 was done. It did so without finding a
violation on the prohibition against double jeopardy.56 According to the
Court:
The Information for violation of Section 46 of RA 6938
alleged, on the other hand, that being then such officer and
director of the Cooperative, petitioner willfully acquired
personal interest or equity adverse to it, in violation of her
duty and of the confidence reposed upon her, by entering
into a contract with Coca-Cola in her own personal
capacity, knowing fully well that the sales profits of such
products should have accrued to the Cooperative. The
essential elements of violation of Section 46 of RA 6938
are (1) that the offender is a director, officer or committee
member; and (2) that the offender willfully and knowingly
(a) votes for or assents to patently unlawful acts; (b) is
guilty of gross negligence or bad faith in directing the
affairs of the cooperative; or (c) acquires any personal or
pecuniary interest in conflict with their duty as such
directors, officers or committee member.57
At this point, the Court found mens rea to be an element of the crime,
even if this is under a special law because the words “willfully” and
“knowingly” were used.58 In its plain reading of the law, it found the same
55 Article 172 provides:
The penalty of prision correctional in its medium and maximum
periods and a fine of not more than P5,000 pesos shall be imposed
upon: […]
2. Any person who, to the damage of a third party, or with the
intent to cause such damage, shall in any private document commit any
of the acts of falsification enumerated in the next preceding article.
56 “Since the Informations filed against petitioner were for separate and distinct
offenses as discussed above — the first against Article 172(2) of the Revised Penal Code
and the second against Section 46 of the Cooperative Code (RA 6938) — one cannot be
pleaded as a bar to the other under the rule on double jeopardy. Besides, it is basic in
criminal procedure that an accused may be charged with as many crimes as defined in our
penal laws even if these arose from one incident.” Asistio, 756 SCRA at 282.
57 Id. at 281 (emphasis added).
58 “The essential elements of violation of Section 46 of RA 6938 are (1) that the
offender is a director, officer or committee member; and (2) that the offender willfully
and knowingly (a) votes for or assents to patently unlawful acts; (b) is guilty of gross
negligence or bad faith in directing the affairs of the cooperative; or (c) acquires any
102 Asian-Pacific Law & Policy Journal [Vol. 20:3
to be an “essential”59 element. Continuing to the succeeding paragraph,
however, the Court cryptically said:
Verily, there is nothing common or similar between the
essential elements of the crimes of falsification of private
document under Article 172 (2) of the [Revised Penal
Code] and that of violation of Section 46 of RA 6938, as
alleged in the Informations filed against petitioner. As
neither of the said crimes can be said to necessarily include
or is necessarily included in the other, the third requisite for
double jeopardy to attach—a second jeopardy is for the
same offense as in the first—is, therefore, absent. Not only
are their elements different, they also have a distinct
nature, i.e., the former is malum in se, as what makes it a
felony is criminal intent on the part of the offender, while
the latter is malum prohibitum, as what makes it a crime is
the special law enacting it.
In effect, the Court said that a person could be charged and convicted
under both Article 172 of the Revised Penal Code and Section 46 of the
Cooperative Code, even if the former is a means to commit the latter,
because their natures are different.60 Like in ABS-CBN Corp., the Court
found mutual exclusivity between a crime malum in se where there is
“criminal intent on the part of the offender”61 and crime malum prohibitum,
where intent is immaterial. Asistio, however, confounds this further by
effectively stating that a crime that does not necessitate the element of intent
can be committed through a crime where intent is an element and, still, a
person can be convicted with both.
personal or pecuniary interest in conflict with their duty as such directors, officers or
committee member.” Id. (emphasis added).
59 Id.
60 “Not only are [the two offenses’] elements different, they also have a distinct
nature, i.e., the former is malum in se, as what makes it a felony is criminal intent on the
part of the offender, while the latter is malum prohibitum, as what makes it a crime is the
special law enacting it.” Asistio, 756 SCRA at 282. Compare this with the concept of
complex crime proper in Article 48 of the Revised Penal Code, see People v. Jugueta,
G.R. No. 202124, 788 SCRA 331, 354 (S.C., Apr. 5, 2016) (Phil.), citing People v.
Neldima, G.R. No. 184500, 680 SCRA 386, 427 (S.C., Sept. 11, 2012) (Phil.) (“In a
complex crime, two or more crimes are actually committed, however, in the eyes of the
law and in the conscience of the offender they constitute only one crime, thus, only one
penalty is imposed. There are two kinds of complex crime. The first is known as a
compound crime, or when a single act constitutes two or more grave or less grave
felonies while the other is known as a complex crime proper, or when an offense is a
necessary means for committing the other.”).
61 Asistio, 756 SCRA at 282.
2019 Nadate 103
This confusion in ABS-CBN Corp. and Asistio lies with the fact that
the Court is merely being consistent with precedence and the state of law
for close to a century.62 In both cases, the Court has tried to make itself
coherent within the framework built by a long line of case law that since Go
Chico, as shown, has overarching and overwhelmingly defined the contours
of criminal law in the Philippines.
B. The Jurisprudential History of the “Mala Dichotomy”
Despite the framework’s origin from Go Chico, a reading of the case
does not itself sanction many of the legal and conceptual analyses under the
contemporary treatment of the mala dichotomy, especially the
categorization of special laws as generally mala prohibita.
By tracing the jurisprudential history of this legal rule to determine
how the divergence happened, the Article found an important observation
regarding the Philippines’ “hybrid” legal system.63 This dichotomy is a
result of the interactions of the civil law tradition brought by Spanish
colonization (which “lends itself more readily to codification”64) and the
common law tradition adopted under the American colonial regime.65 The
62 For instance, the Court, in Asistio, cited the following passage from People v.
Doriguez, G.R. No. L-24444, 24 SCRA 163, 171-172 (S.C., July 29, 1968) (Phil.):
It is a cardinal rule that the protection against double jeopardy may be
invoked only for the same offense or identical offenses. A simple act
may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional
fact or element which the other does not, an acquittal or conviction or a
dismissal of the information under one does not bar prosecution under
the other. Phrased elsewise, where two different laws (or articles of the
same code) defines two crimes, prior jeopardy as to one of them is no
obstacle to a prosecution of the other, although both offenses arise from
the same fact, if each crime involves some important act which is not
an essential element of the other.
63 See Cesar Lapuz Villanueva, Comparative Study of the Judicial Role and Its
Effects on the Theory of Precedents in the Philippine Hybrid Legal System, 65 PHIL. L.J.
42 (1990).
64 Wienczyslaw J. Wagner, Codification in Europe and the Codification
Movement in the Middle of the Nineteenth Century in the United States, 2 ST. LOUIS U.
L.J. 335, 335 (1953).
65 Owing to its history as a former colony of Spain and the United States, the
Philippines has a mixed legal tradition incorporating aspects of the civilian legal tradition
of the former and the common legal tradition of the latter. For discussions on this legal
transplantation, see generally PACIFICO A. AGABIN, MESTIZO: THE STORY OF THE
PHILIPPINE LEGAL SYSTEM (2011).
104 Asian-Pacific Law & Policy Journal [Vol. 20:3
legal phenomenon that resulted is, in effect, a symptom of incompatible
legal transplantations.66
Specifically, an extensive analysis of jurisprudence shows that the
divergence from the Go Chico pronouncement as regards the public policy-
background of crimes mala prohibita (a common law concept) occurred
because of the adoption of the views of commentators on the Revised Penal
Code, which little regard for legislative history,67 an approach
mainstreamed by the civilian legal tradition.68
1. The Evolution of Case Law from Go Chico
A survey of jurisprudence would show how well ingrained the mala
dichotomy is in Philippine criminal law since Go Chico. It appears,
however, that the next case that invokes the mala dichotomy as precedence
would only follow more than two decades after in People v. Bayona.69 The
case expressly cites Go Chico as a basis to justify the penalization of
possession of firearms during an election gun ban, despite the accused’s
contention that he “could not leave his revolver in his automobile without
66 “[W]hen a foreign rule is imposed on a domestic culture […] [i]t is not
transplanted into another organism, rather it works as a fundamental irritation which
triggers a whole series of new and unexpected events.” Gunther Teubner, Legal Irritants:
Good Faith in British Law or How Unifying Law Ends Up in New Divergences, 61 MOD.
L. REV. 11, 12 (1998).
67 This may be owed to the fact that the Philippines’ Revised Penal Code was
adopted from the codification of Spain, which was based on earlier criminal codifications
in continental Europe. This serialization makes the determination of legislative history
difficult or impractical. See H. S. SANFORD, THE DIFFERENT SYSTEMS OF PENAL CODES
IN EUROPE: A REPORT OF THE ADMINISTRATIVE CHANGES IN FRANCE SINCE THE
REVOLUTION OF 1848 (1854).
68 See, infra, Part I(B)(2) and n.112. Civil law commentators form an important
part of the statutory construction in the Philippines and their positions, particularly on
codified statutes, have been influential, see, e.g., Aviles v. Arcega, G.R. No. 18341, 44
Phil. 924, 932 (S.C., Sept. 18, 1922) (Phil.) (“The doctrine we maintain finds support in
the very opinion of the authoritative commentator of the Civil Code, Mr. Manresa”);
Angelo v. Pacheco, G.R. No. 32894, 56 Phil. 70, 74 (S.C., Sept. 8, 1931) (Phil.)
(“Manresa, that authoritative commentator, thus expresses himself on this point […]”);
Legasto v. Verzosa, G.R. No. L-32344, 54 Phil. 766, 772 (S.C., Mar. 31, 1930) (Phil.)
(“It is thus seen that both the Spanish Supreme Court and the learned and authoritative
commentator, Manresa, are of opinion […]”); Romero v. Villamor, G.R. No. L-10850,
102 Phil. 641, 644 (S.C., Dec. 20, 1957) (Phil.) describing Manresa as “authoritative”;
Walter A. Smith & Co., Inc. v. Cadwallader Gibson Lumber Co., G.R. No. L-32640, 55
Phil. 517, 526 (S.C., Dec. 29, 1930) (Phil.) (describing Manresa’s opinion as
“authoritative”); see also Wagner, supra note 64 (for a comparison of the civil and
common law’s treatment on codification).
69 G.R. No. L-42288, 61 Phil. 181 (S.C., Feb. 16, 1935) (Phil.).
2019 Nadate 105
the risk of losing it because he was alone.”70 Much like the Go Chico
holding that is founded on public policy to pursue the regulation, the Court
stated:
The rule is that in acts mala in se there must be a criminal
intent, but in those mala prohibita it is sufficient if the
prohibited act was intentionally done. “Care must be
exercised in distinguishing the difference between the
intent to commit the crime and the intent to perpetrate the
act. ...” (U.S. vs. Go Chico, 14 Phil., 128.) […]
If we were to adopt the specious reasoning that the
appellant should be acquitted because it was not proved
that he tried to influence or intended to influence the mind
of any voter, anybody could sell intoxicating liquor or hold
a cockfight or a horse race on election day with impunity.71
Both cases would be cited three years later in People v. Genato.72
which involved trademark infringement. Go Chico and Bayona found
application to rebut the claim of innocence made by the appellants. To
quote:
The appellants contend that if there has been any violation,
Larus & Brother Company was the involuntary violator,
but that the accused is entirely innocent. Larus & Brother
Company, according to him, applied for the registration of
the trade-mark long before any question on this case was
ever raised, thereby proving the good faith of Larus &
Brother Company. This court is of the opinion that the
allegation of good faith and innocent does not constitute a
valid defense, it having been admitted that cigarettes
bearing the trade-mark “Domino” were distributed and sole
in the Philippines, without first registering said trade-mark,
which constitutes a violation of the above-cited laws (U.
S. vs. Go Chico, 14 Phil., 128; People vs. Bayona, 61 Phil.,
181).73
Another subsequent application would be in the 1957 case of People
v. Lubo,74 which again involved illegal possession of firearms. Here, the
Court said, citing Go Chico and Bayona:
70 Id. at 183.
71 Id. at 186.
72 G.R. No. L-45514, 66 Phil. 351 (S.C., Oct. 17, 1938) (Phil.).
73 Id.
74 G.R. No. L-8293, 101 Phil. 179 (S.C., Apr. 24, 1957) (Phil.).
106 Asian-Pacific Law & Policy Journal [Vol. 20:3
The appellant failed to show that he has a regular license or
a provisional permit pending the issuance of regular license
applied for, to possess the firearm and ammunition in
question issued by the competent authorities. Furthermore,
temporary license issued by the Provost Marshal General or
the provincial provost marshal, as the case may be are
effective only for periods not exceeding three months at a
time. The permit to possess the firearm and ammunition in
question (Exhibit 2) was issued on 15 January 1948 and has
never been renewed. The crime charged is punished by
special law, a malum prohibitum, and no malice or intent to
commit a crime need be proved. The plea of lack of animus
possidendi untenable. While it is true that there must be
possession coupled with intent to possess the firearm to
support conviction, appellant's conduct belies his
contention. The very fact of possession and use by the
appellant and his securing a “temporary license” show
beyond doubt that the possidendi exists.75
What is peculiar is that after Lubo, the citation of Go Chico and its
derivative cases would increase only during the turn of the 20th century.
There are several reasons for this resurgence, mainly: first, the emergence
of a string of jurisprudence that follows certain public policy-based laws,
namely, the laws on bouncing checks and illegal possession of firearms; and
second, the Court’s decisions in the Anti-Fencing Law.
Proceeding from this point, Sarmiento v. People, decided in 1980,76
cited Go Chico to reiterate the intent requirement in illegal possession of
firearms:
All petitioners were, therefore, in law deemed in actual
possession of the submachine gun, if not physically, at least
constructively, which is just as punishable, even if the
possession is only for a short time. The gun was brought
along by them in the jeepney, all with fun knowledge of
how usefully it would serve their common purpose. Their
possession was, therefore, with animus possidendi. Thus,
completing the elements of the crime charged which is that
of illegal possession of firearm.77
75 Id. at 183.
76 G.R. No. L-36042, 98 SCRA 556 (S.C., July 15, 1980) (Phil.).
77 Id. at 563. Note, however, that in both cases of Lubo and Sarmiento, the Court
talked about animus possidendi or the specific intent to commit. This is important as it
harks back to the ruling in Go Chico that appears to be the original intention in
introducing the mala dichotomy: “Care must be exercised in distinguishing the
2019 Nadate 107
Years after, in 1986, the Court decided the landmark case of Lozano
v. Martirez,78 a consolidated case that involved the constitutionality of Batas
Pambansa No. 22 (B.P. 22), popularly known as the “Bouncing Check
Law.” By characterizing B.P. 22 as punishing an “offense […] not as a crime
against property, but against public interest,” Lozano held:
A divided Court held in People vs. Sabio, Jr. that Article
315, as amended by Republic Act 4885, does not cover
checks issued in payment of pre-existing obligations, again
relying on the concept underlying the crime of estafa
through false pretenses or deceit—which is, that the deceit
or false pretense must be prior to or simultaneous with the
commission of the fraud.
Since statistically it had been shown that the greater bulk of
dishonored checks consisted of those issued in payment of
pre-existing debts, the amended provision evidently failed
to cope with the real problem and to deal effectively with
the evil that it was intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a
backdrop, the then Interim Batasan confronted the problem
squarely. It opted to take a bold step and decided to enact a
law dealing with the problem of bouncing or worthless
checks, without attaching the law’s umbilical cord to the
existing penal provisions on estafa. BP 22 addresses the
problem directly and frontally and makes the act of issuing
a worthless check malum prohibitum.79
The rationalization of the Court in Lozano and subsequent cases it
establishes is important. It makes explicit the principle that offenses malum
prohibitum are designed to be strict liability crimes to preserve an important
public policy that could otherwise be defeated by invocations of good faith
or lack of knowledge.
In 1993, the Court promulgated Co v. Court of Appeals,80 which
introduced good faith as a defense despite the Court’s prior pronouncement
that the law is a crime malum prohibitum. Here, the Court exonerated the
defendant on the basis that there was an opinion made by the Minister of
differences between the intent to commit the crime and the intent to perpetrate the act.
The accused did not consciously intend to commit a crime; but he did intend to commit
an act, and the act is, by the very nature of things, the crime itself — intent and all. The
wording of the law is such that the intent and the act are inseparable.” Go Chico, 14 Phil.
at 138.
78 G.R. No. L-63419, 146 SCRA 323 (Phil., Dec. 18, 1986) (Phil.).
79 Id. at 334 (citations omitted).
80 G.R. No. 100776, 227 SCRA 444 (S.C., Oct. 28, 1993) (Phil.).
108 Asian-Pacific Law & Policy Journal [Vol. 20:3
Justice that checks issued merely to guarantee the performance of an
obligation ware not covered by B.P. 22. But the Court did cite the Solicitor
General’s invocation of Go Chico and the mala distinction:
Inveighing against this proposition, the Solicitor General
invokes U.S. v. Go Chico, 14 Phil. 128, applying the
familiar doctrine that in crimes mala prohibita, the intent or
motive of the offender is inconsequential, the only relevant
inquiry being, “has the law been violated?” The facts
in Go Chico are substantially different from those in the
case at bar. In the former, there was no official issuance by
the Secretary of Justice or other government officer
construing the special law violated; and it was there
observed, among others, that “the defense . . . (of) an
honest misconstruction of the law under legal advice” could
not be appreciated as a valid defense. In the present case on
the other hand, the defense is that reliance was placed, not
on the opinion of a private lawyer but upon an official
pronouncement of no less than the attorney of the
Government, the Secretary of Justice, whose opinions,
though not law, are entitled to great weight and on which
reliance may be placed by private individuals is reflective
of the correct interpretation of a constitutional or statutory
provision[.]
This is after all a criminal action all doubts in which,
pursuant to familiar, fundamental doctrine, must be
resolved in favor of the accused. Everything considered, the
Court sees no compelling reason why the doctrine of mala
prohibita should override the principle of prospectivity [as
against the retroactive application of a Supreme Court
ruling, which would have compelled an opposite finding],
and its clear implications as hereinabove set out and
discussed, negating criminal liability.81
In Ibasco v. Court of Appeals,82 decided three years after Co, the
Court would resoundingly affirm the view that the B.P. 22 is malum
prohibitum in nature.83 Thus:
81 Id. at 455-56 (emphasis added) (citations omitted).
82 G.R. No. 117488, 261 SCRA 449 (S.C., Sept. 5, 1996) (Phil.).
83 In the same decision, the Supreme Court acquiesced to the findings of the trial
court which: “Since the act and commission specified in BP Blg. 22 are not necessarily
evil or wrongful from their nature and neither are they inherently illicit and immoral and
considering that the law which penalize [sic] such act or commission is a special statutory
law, the offenses are considered mala prohibita and considering the rule in cases of mala
2019 Nadate 109
The fact that the object of the contract, the animal feeds, was
not of good quality is irrelevant in the prosecution of a case
involving B.P. Blg. 22, for the said law was enacted to
prohibit, under pain of penal sanctions, the making of
worthless checks and putting them in circulation. It is not the
nonpayment of an obligation which the law punishes, but the
act of making and issuing a check that is dishonored upon
presentment for payment.84
The effects of Reyes and Ibasco would be significant in reifying the
mala distinction as regards the malum prohibitum nature of B.P. 22 and this
would remain the rule today. For instance, in the 2000 case of Cueme v.
People,85 the Court cited Reyes and said:
The gravamen of the offense punished under B.P. Blg. 22 is
the act of making or issuing a worthless check or a check
that is dishonored upon its presentment for payment. The
law has made the mere act of issuing a bad check malum
prohibitum, an act proscribed by the legislature for being
deemed pernicious and inimical to public welfare.
Considering the rule in mala prohibita cases, the only
inquiry is whether the law has been breached. Criminal
intent becomes unnecessary where the acts are prohibited
for reasons of public policy, and the defenses of good faith
and absence of criminal intent are unavailing.86
Another important legal development that led to the divergence from
the Go Chico articulation of the mala distinction is jurisprudence as regards
the Anti-Fencing Law or Presidential Decree No. 1612. This was initiated
prohibita, the only inquiry is whether or not the law has been violated—criminal intent is
not necessary where the acts are prohibited for reasons of public policy. The defense of
good faith and absence of criminal intent would not prosper in prosecution for violation.”
Id. at 454 (citations omitted).
84 Id. at 463.
85 G.R. No. 133325, 334 SCRA 795 (S.C., June 30, 2000) (Phil.).
86 Id. at 805; see also Mitra v. People, G.R. No. 191404, 623 SCRA 673, 679
(S.C., July 5, 2010) (Phil.) (“The purpose of BP 22 in declaring the mere issuance of a
bouncing check as malum prohibitum is to punish the offender in order to deter him and
others from committing the offense, to isolate him from society, to reform and
rehabilitate him, and to maintain social order.”); Navarra v. People, G.R. No. 203750,
792 SCRA 331, 340 (S.C., June 6, 2016) (Phil.) (“The mere act of issuing a worthless
check is malum prohibitum; it is simply the commission of the act that the law prohibits,
and not its character or effect, that determines whether or not the provision has been
violated. Malice or criminal intent is completely immaterial.”).
110 Asian-Pacific Law & Policy Journal [Vol. 20:3
by the 1993 case of Lim v. Court of Appeals.87 Here, the Court struck down
the contention of the defendant that animus furandi or the intent to steal was
not proven by guilt beyond reasonable doubt.88 For its importance, the
Court’s extensive argument and sources is dissected in seriatim.
Initially, the Court first indicated that intent is read from the overt
acts of a person:
On the aspect of animus furandi, petitioner is of the belief
that this element was not clearly established by the
People’s evidence and he, therefore, draws the conclusion
that respondent court seriously erred in presuming the
existence of intent to gain. Again, this supposition ignores
the fact that intent to gain is a mental state, the existence of
which is demonstrated by the overt acts of a person
(Soriano vs. People, 88 Phil., 368 [1951]; 1 Reyes, Revised
Penal Code, Eleventh Rev. Ed., 1991, p. 45;
1 Aquino, Revised Penal Code, 1988 Ed., p. 197). And
what was the external demeanor which petitioner showed
from the which the trial court and respondent court
inferred animus furandi? These circumstances were vividly
spelled in the body of the judgment which petitioner chose
to blandly impugn and over which he remains indifferent
even at this crucial stage. Withal, the sinister mental state is
presumed from the commission of an unlawful act in
bringing out the tires from his bodega which were loaded
on his pick-up (People vs. Sia Teb Ban, 54 Phil., 52 [1929];
1 Reyes, supra at p. 46; Section 3(b), Rule 131, Revised
Rules on Evidence).89
It could have, of course, ended there. But it presented an alternative
argument—obiter dictum as regards the immateriality of intent because the
crime is punished by a special statute, citing Go Chico and Justice Luis B.
Reyes’ commentary on the Revised Penal Code.90
At any rate, dolo is not required in crimes punished by a
special statute like the Anti-Fencing Law of 1979 (U.S. vs.
Go Chico, 14 Phil. 128 [1909]; 1 Reyes, supra at p. 58)
because it is the act alone, irrespective of the motives
which constitutes the offense (U.S. vs. Siy Cong Bieng, et
87 G.R. No. 100311, 222 SCRA 279 (S.C., May 18, 1993) (Phil.).
88 Id. at 286-87.
89 Id. at 286.
90 See infra Part I(A)(2) (emphasis added).
2019 Nadate 111
al., 30 Phil., 577 (1915); 1 Reyes, at p. 59; 1 Aquino, supra,
at p. 52).91
The fact that the above statement is only obiter is shown by the
subsequent phraseology that reverts to the principle that mens rea is read
from the actus reus:
Verily, when it was proved that petitioner committed the
unlawful acts alleged in the information, it was properly
presumed that they were committed with full knowledge
and with criminal intent, and it was incumbent upon him to
rebut such a presumption — a burden which petitioner
regrettably failed to discharge (United States vs. Tria, 17
Phil., 303 (1910); 1 Aquino, supra, at p. 45).92
Lim would be extensively quoted three years later in Dunlao, Sr. v.
Court of Appeals,93 which also involved an appeal for conviction under the
Anti-Fencing Law. From this two-fold development concerning particular
felonies, the mala distinction would be applied to a variety of cases. The
Court would use the articulation, foremost of Lim and Dunlao (regarding
the special statute distinction) in finding special laws to be crimes mala
prohibita, often regardless of the text of the statute, as Asistio earlier
demonstrated.
Thus, in Tan v. People,94 the Court found that the gathering,
collection and/or possession, without license, of lumber, which is
considered timber or forest product, as prohibited and penalized under the
Forestry Reform Code, is a crime malum prohibitum. As such, “absence of
malice or criminal intent will not save the day for [the Code’s violators].”95
The same treatment is seen in violation of the Social Security Act of
1997, as the 2010 case of Mendoza v. People96 shows.97 In Mendoza, the
Court ruled, citing the established holdings in United Christian Missionary
91 Lim, 222 SCRA at 286-87.
92 Id. at 287.
93 G.R. No. 111343, 260 SCRA 788 (S.C., Aug. 22, 1996) (Phil.).
94 G.R. No. 115507, 290 SCRA 117 (S.C., May 19, 1998) (Phil.).
95 Id. at 130.
96 G.R. No. 183891, 626 SCRA 624 (S.C., Aug. 3, 2010) (Phil.).
97 Id. at 626. “For failure to remit the Social Security System (SSS) premium
contributions of employees of the Summa Alta Tierra Industries, Inc. (SATII) of which
he was president, Romarico J. Mendoza (petitioner) was convicted of violation of Section
22(a) and (d) vis-à-vis Section 28 of R.A. No. 8282 or the Social Security Act of 1997 by
the Regional Trial Court of Iligan City, Branch 4. His conviction was affirmed by the
Court of Appeals.”
112 Asian-Pacific Law & Policy Journal [Vol. 20:3
Society v. Social Security Commission98 and Roman Catholic Archbishop v.
Social Security Commission,99 that “[f]rom the moment the remittance of
premiums due is delayed, the penalty immediately attaches to the delayed
premium payments by force of law.”100 According to the Court, “[f]ailure to
comply with the law being malum prohibitum, intent to commit it or good
faith is immaterial.”101
2. The Misconception as Contained in Criminal Law Commentaries
Another major source of the divergence from the Go Chico ruling
are the opinions stated in commentaries, that the Court has cited to justify
certain decisions. An example of this is the case of Lim, which utilized of
the commentary of a respected Filipino criminal law expert, Justice Luis B.
Reyes.102 In this regard, criminal law commentaries have been universal in
their discussion of the mala dichotomy and have often used the case of Go
Chico to open their discussions of the topic, usually under Article 3 of the
Revised Penal Code on dolo and culpa.103
Early references like Justice Ambrocio Padilla’s 1947
commentary104 on the Revised Penal Code and Dean Vicente J. Francisco’s
1954 work105 have been consistent in adopting this dichotomy. Justice
Padilla wrote:
Distinction should be made between crimes that are mala in
se, felonies under the Penal Code—wherein criminal intent
98 G.R. No. L-26712, 30 SCRA 982 (S.C., Dec. 27, 1969) (Phil.).
99 G.R. No. L-15045, 1 SCRA 10 (S.C., Jan. 20, 1961) (Phil.).
100 Mendoza, 626 SCRA at 629, citing United Christian Missionary Society, 30
SCRA at 987-88 (emphasis and underscoring removed).
101 Mendoza, 626 SCRA at 630, citing Tan v. Ballena, G.R. No. 168111, 557
SCRA 229 (S.C., July 4, 2008) (Phil.).
102 Lim, 222 SCRA at 286-87.
103 Article 3 of the Revised Penal Code provides:
Acts and omissions punishable by law are felonies (delitos).
Felonies are committed not only be means of deceit (dolo) but also by
means of fault (culpa).
There is deceit when the act is performed with deliberate intent and
there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
104 CRIMINAL LAW: REVISED PENAL CODE ANNOTATED (P.C.F. Pub. 1947 ed.).
105 1 THE REVISED PENAL CODE (ACT NO. 3815): ANNOTATED AND COMMENDED
BY VICENTE J. FRANCISCO (2d ed. East Pub. House 1954).
2019 Nadate 113
is necessary, and the mala prohibita—acts made criminal
by special laws—wherein intent is immaterial, provided the
prohibited act be voluntarily committed.106
Similarly, Dean Francisco wrote:
There is a distinction between crimes which are mala in se,
or wrongful from their nature, such as murder, robbery,
rape, and many lesser offenses, and those that are mala
prohibita, or wrong merely because prohibited by statute,
such as gambling. Crimes mala in se are those so serious in
their effects on society as to call for the practically
unanimous condemnation of its members; while crimes
mala prohibita are violations of mere rules of convenience
designed to secure a more orderly regulation of the affairs
of society.107
This position has been adopted by recent commentaries. In the 2007
edition of respected scholar, Justice Florenz D. Regalado’s,108 conspectus
on Philippine criminal law,109 he noted:
Felonies may be mala in se or mala prohibita. The
American concepts thereof which were adopted in our
jurisdiction is that a malum in se is a wrong in itself,
involving as it does an illegality from its very nature (State
vs. Sherdowdy, 45 N.M. 516, 18 P. 2, 380). A malum
prohibitum, on the other hand, involves an act which is
wrong only because it is prohibited, and it is not inherently
immoral but becomes wrong only because its commission
is expressly forbidden by positive law (People vs. Pavlic,
227 Mich. 563, N.W. 371, 35 ALR) on considerations of
public policy, order and convenience.110
106 Id. at 17.
107 FRANCISCO, supra note 105, at 46-47 (citation omitted).
108 The Philippine Supreme Court has viewed Justice Regalado’s work with
authority, see Manuel v. People, G.R. No. 165842, 476 SCRA 461, 487-88 (S.C., Nov.
29, 2005) (Phil.) (“According to Retired Supreme Court Justice Florenz D. Regalado, an
eminent authority on Criminal Law, in some cases where an absentee spouse is believed
to be dead, there must be a judicial declaration of presumptive death, which could then be
made only in the proceedings for the settlement of his estate.”); People v. Trestiza, G. R.
No. 193833, 660 SCRA 407, 419 (S.C., Nov. 16, 2011) (Phil.) (“Even an eminent jurist,
Justice Florenz B. Regalado elucidates on this point clearly.”).
109 CRIMINAL LAW CONSPECTUS (3rd ed. Nat’l Book Store 2007).
110 Id. at 18.
114 Asian-Pacific Law & Policy Journal [Vol. 20:3
Meanwhile, Leonor D. Boado’s 2008 commentary on the Revised
Penal Code and special penal laws discussed:111
Crimes mala in se are acts or omissions which are
inherently evil (mala – evil; in se – by itself). Generally,
crimes mala in se are punished under the Revised Penal
Code. There are however crimes which although punished
under special laws are deemed mala in se, such as those
which are mere modification of the provisions of the Code
like cattle rustling which modifies Articles 308, 309 and
310 on qualified theft. Thus, P.D. 533 is not a malum
prohibitum but a modification of theft and malicious
mischief. Therefore, the rules and systems on penalties
under the Revised Penal Code apply. (People vs.
Macatanda, infra). (However, the law on carnapping which
although modifying the same Article was declared in a case
as malum prohibitum) […]
[Crimes mala prohibita] are acts which are made evil
because there is a law prohibiting the same. These would
not be wrong but for the fact that positive law forbids them.
In this case, the only question is, has the law been violated?
When the act is illegal, intent of the offender is immaterial.
(Dunlao, Sr. vs. Court of Appeals, G.R. No. 111242, August
22, 1996, 73 SCAD)
For instance, when a check is presented for payment, the
drawee bank will generally accept the same regardless of
whether or not it was issued in payment of an obligation or
merely to guarantee the said obligation. What the punishes
is the issuance of a bouncing check not for the purpose for
which it was issued nor the term and conditions relating to
its issuance. The mere act of issuing a worthless check is
malum prohibitum. (Cruz v. Court of Appeals, G.R. No.
108738, June 17, 1993, 52 SCAD).112
111 NOTES AND CASES ON THE REVISED PENAL CODE (ACT NO. 3815), AS
AMENDED (BOOKS 1 AND 2) AND SPECIAL PENAL LAWS (2008 ed. Rex Book Store).
112 Id. at 15.
2019 Nadate 115
In the same vein, in the 2012 edition of Justice Luis B. Reyes
canonical work113 on the Revised Penal Code,114 he stated:
The term mala in se refers generally to felonies defined and
penalized by the Revised Penal Code. When the acts are
inherently immoral, they are mala in se, even if punished
are inherently immoral, they are mala in se, even if
punished by special laws. On the other hand, there are
crimes in the Revised Penal Code which were originally
defined and penalized by special laws. Among them are
possession and use of opium, malversation, brigandage, and
libel.
The term mala prohibita refers generally to acts made
criminal by special laws.115
These cases and commentaries are clear in their articulation that the
mala dichotomy has gained far-reaching influence and acceptance in
Philippine criminal law.
There is doctrinal consistency in the treatment of mens rea insofar
as the code-classification is concerned, especially with respect to the idea
that special laws are mala prohibita in nature. As presented, however, there
are problems as regards this treatment. ABS-CBN Corp. and Asistio, for
instance, exhibit the danger of accepting this doctrine too far, without regard
to the proper interpretation of what mala in se or mala prohibita really
means, as originally explicated in Go Chico. This has not escaped
commentators, who have also observed inconsistencies in this distinction.
For instance, Justice Reyes noted:
When the acts are inherently immoral, they are mala in se,
even if punished under special law. […]
113 Justice Luis B. Reyes’ commentary on criminal law has gained great respect
in the Philippine Supreme Court, see, e.g., Santiago v. People, G.R. No. 200233, 763
SCRA 54, 63 (S.C., July 15, 2015) (Phil.) (“In referring to Viada, Justice Luis B. Reyes,
an eminent authority in criminal law, writes that ‘a person, whether man or woman, who
knowingly consents or agrees to be married to another already bound in lawful wedlock
is guilty as an accomplice in the crime of bigamy.’”); Lim Lao v. Court of Appeals, G.R.
No. 119178, 274 SCRA 572, 584 (S.C., June 20, 1997) (Phil.) (“Justice Luis B. Reyes, an
eminent authority in criminal law, also enumerated the elements of the offense defined in
the first paragraph of Section 1 of B.P. 22”).
114 THE REVISED PENAL CODE: CRIMINAL LAW (18th ed., Rex Book Store 2012).
115 Id. at 58. This has been a position consistently held by Justice Reyes.
Compare, for instance, LUIS B. REYES, 1 THE REVISED PENAL CODE: CRIMINAL LAW 34
(3d. 1958 rev. ed.) (“The term mala in se refers generally to felonies defined and
penalized by the Revised Penal Code. The term mala prohibita refers to acts made
criminal by special laws.”).
116 Asian-Pacific Law & Policy Journal [Vol. 20:3
The Revised Election Code, as far as its penal provisions
are concerned, is a special law, it being a part of the
Revised Penal Code or its amendment.116
In Boado’s Notes and Cases on the Revised Penal Code and Special
Penal Laws,117 a similar paradox is reached:
Even if a special law uses the terms of penalties in the
Code, that alone will not make the act or omission malum
in se. The law may only intend to make the Code apply
suppletorily thereto. For instance, the Dangerous Drugs Act
(R.A. 6425, as amended by R.A. 7659) employed the
penalties used in the Code but its violations were still
deemed as malum prohibitum. Nevertheless, the system of
penalties under the Code was applied to violations
involving dangerous drugs under that law. Likewise, the
penalty imposable pursuant to the Indeterminate Sentence
Law was also determined following the rules under the
Revised Penal Code.118
The succeeding section would further elucidate this.
II. THE INCONGRUOUS TREATMENT OF MENS REA
Consider, again, the 2007 edition of former Justice Regalado’s
Conspectus,119 where he wrote:
The conventional distinctions between them are stated in
some books as follows: (a) mala in se require criminal
intent while in mala prohibita, the mere commission of the
prohibited act, regardless of intent, is sufficient, and (b)
mala in se are those felonies covered by the Revised Penal
Code, whereas mala prohibita refer to acts punished by
special laws.
The second distinction is inaccurate as the Code itself
penalizes certain acts as felonies regardless of the intent of
the accused, e.g., illegal possession of picklocks (Art. 304),
correspondence with a hostile country (Pars. 1 and 2, Art.
120), illegal exaction (Par. 2m Art. 213), and crimes
committed by culpa (Art. 365). On the other hand, some
116 REYES, supra note 115, at 59.
117 BOADO, supra note 111.
118 Id. at 16.
119 REGALADO, supra note 108.
2019 Nadate 117
special laws require criminal intent, e.g., omission of voters
in the registry list (Sec. 15, R.A. 180, Revised Election
Code [now, Sec. 216(y)(17), B.P. 881, Omnibus Election
Code]), subversion (R.A. 1700 and its amendments until its
repeal), illegal possession, etc. of firearms (P.D. 1866, as
amended by R.A. 8294), child abuse (R.A. 7610), and
sexual harassment (R.A. 7877), to name a few.120
In two paragraphs, Justice Regalado summarized the incongruous
treatment of mens rea in the mala dichotomy, one that we have introduced
in briefly discussing the 2016 Asistio case.121 In this section, we will be
dissecting this “incongruity” more closely to make clear that this well-
entrenched premise in Philippine penal law is flawed. Ultimately, this drives
us into the conclusion that we should revisit and remove this distinction in
the first place and read intent based on how the offense is defined—not at
how the offense is published.
A. The Inconsistency in Code-Special Law Interpretation
Justice Regalado’s commentary is correct in stating that the
distinction is inaccurate.122 But his statement does not fully show the scope
and magnitude of this inaccuracy. The fact is, this distinction is filled with
so many exceptions that it does not work to have it as a general rule in the
first place. Consider the 2015 case of Jacaban v. People,123 which said:
Albeit, PD 1866, as amended by RA 8294, is a malum
prohibitum and that the Revised Penal Code is generally
not applicable, it has been held that when a special law,
which is a malum prohibitum, adopts the nomenclature of
the penalties in the Revised Penal Code, the latter law shall
apply.124
120 Id. at 19.
121 See Part I(A), supra note 24.
122 See REGALADO, supra note 108, at 18-19.
123 G.R. No. 184355, 754 SCRA 98 (S.C., Mar. 23, 2015) (Phil.); see also
People v. Simon. G.R. No. 93028, 234 SCRA 555, 576 (S.C., July 29, 1994) (Phil.)
(“While these are special laws, the fact that the penalties for offenses thereunder are those
provided for in the Revised Penal code lucidly reveals the statutory intent to give the
related provisions on penalties for felonies under the Code the corresponding application
to said special laws, in the absence of any express or implicit proscription in these special
laws. To hold otherwise would be to sanction an indefensible judicial truncation of an
integrated system of penalties under the Code and its allied legislation, which could never
have been the intendment of Congress.”).
124 Jacaban, 754 SCRA at 109-10.
118 Asian-Pacific Law & Policy Journal [Vol. 20:3
Consider, too, the controversial case of Estrada v.
Sandiganbayan,125 involving the deposed President Joseph Ejercito Estrada,
which questioned the constitutionality of the Plunder Law or Republic Act
No. 7080, as amended by Republic Act No. 7659. Concededly, not being
defined under the Revised Penal Code, the law is a special law, but under
the pen of Justice Josue Bellosillo, a respected constitutionalist, the Court
said:
The legislative declaration in R.A. No. 7659 that plunder is
a heinous offense implies that it is a malum in se. For when
the acts punished are inherently immoral or inherently
wrong, they are mala in se and it does not matter that such
acts are punished in a special law, especially since in the
case of plunder the predicate crimes are mainly mala in
se. Indeed, it would be absurd to treat prosecutions for
plunder as though they are mere prosecutions for violations
of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the
inherent wrongness of the acts.126
Consider, too, the ruling in Lluz v. Commission on Elections and
Caesar O. Vicencio,127 which concerned a violation of another special law
allegedly committed by the private respondent under Section 262 in relation
to Section 74 of Batas Pambansa Blg. 881. In Lluz, the petitioners charged
Vicencio under this provision128 for allegedly misrepresenting himself as a
Certified Public Accountant.
125 G.R. No. 148560, 369 SCRA 394 (S.C., Nov. 19, 2001) (Phil.).
126 Id. at 480-81 (citation omitted).
127 G.R. No. 172840, 523 SCRA 456 (S.C., July 7, 2007) (Phil.).
128 The pertinent part of Section 74 of Batas Pambansa Blg. 881 provides, with
emphasis added:
The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to
which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that
2019 Nadate 119
In acquitting the private respondent, despite the arguments of the
petitioners that “a violation being an election offense, it is malum
prohibitum and immediately gives rise to criminal liability upon proof of
commission,”129 the Court ratiocinated:
Were we to follow petitioners’ line of thought, for
misrepresentation of a non-material fact, private respondent
could be prosecuted for an election offense and, if found
guilty, penalized with imprisonment and other accessory
penalties. […]
Further compelling us to dismiss this petition is the
consideration that any complaint against private respondent
for perjury under the Revised Penal Code would
necessarily have to allege the element of materiality. The
pertinent section of the Revised Penal Code states:
Art. 183. False testimony in other cases and perjury in
solemn affirmation.— The penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period shall be imposed upon any person who, knowingly
making untruthful statements and not being included in the
provision of the next preceding articles, shall testify under
oath, or make an affidavit, upon any material matter before
a competent person authorized to administer an oath in
cases in which the law so requires.
The basis of the crime of perjury is the willful assertion of a
falsehood under oath upon a material matter. Although the
term “material matter” under Article 183 takes on a fairly
general meaning, that is, it refers to the main fact which is
the subject of inquiry, in terms of being an element in the
execution of a statement under oath it must be understood
as referring to a fact which has an effect on the outcome of
the proceeding for which the statement is being executed.
Thus, in the case of a certificate of candidacy, a material
matter is a fact relevant to the validity of the certificate and
which could serve as basis to grant or deny due course to
the certificate in case it is assailed under Section 78.130
the facts stated in the certificate of candidacy are true to the best of his
knowledge.
129 Lluz, 523 SCRA at 466.
130 Id. at 472-74 (emphasis added) (citations omitted).
120 Asian-Pacific Law & Policy Journal [Vol. 20:3
Compare Lluz with Garcia v. Court of Appeals,131 a 2006 electoral
case concerning an alleged violation of another special law, the Electoral
Reforms Act of 1987 or Republic Act No. 6646. The threshold question here
is whether the acts prohibited under Section 27(b)132 are mala in se. This is
important because the defendant alleged that “there was no motive on her
part to reduce the votes of the private complainant.”133 On the other hand,
the complainant and private respondent contends “that good faith is not a
defense in the violation of an election law, which falls under the class
of mala prohibita.”134 In deciding the case, the Court first enunciated the
general rule:
Generally, mala in se felonies are defined and penalized in
the Revised Penal Code. When the acts complained of are
inherently immoral, they are deemed mala in se, even if
they are punished by a special law. Accordingly, criminal
intent must be clearly established with the other elements
of the crime; otherwise, no crime is committed. On the
other hand, in crimes that are mala prohibita, the criminal
acts are not inherently immoral but become punishable only
because the law says they are forbidden. With these crimes,
the sole issue is whether the law has been violated.
Criminal intent is not necessary where the acts are
prohibited for reasons of public policy.135
Then, the Court proceeded to address the issue, without much
discussion as to how it arrived at the exception to the aforementioned
general rule:
Clearly, the acts prohibited in Section 27(b) are mala in se.
For otherwise, even errors and mistakes committed due to
overwork and fatigue would be punishable. Given the
volume of votes to be counted and canvassed within a
limited amount of time, errors and miscalculations are bound
to happen. Moreover, it could not be the intent of the law to
131 G.R. No. 157171, 484 SCRA 617 (S.C., Mar. 14, 2006) (Phil.).
132 “Election Offenses. —In addition to the prohibited acts and election offenses
enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the
following shall be guilty of an election offense: […] (b) Any member of the board of
election inspectors or board of canvassers who tampers, increases, or decreases the votes
received by a candidate in any election or any member of the board who refuses, after
proper verification and hearing, to credit the correct votes or deduct such tampered
votes.” Republic Act No. 6646, § 27.
133 Garcia, 484 SCRA at 622.
134 Id.
135 Id. at 622-23.
2019 Nadate 121
punish unintentional election canvass errors. However,
intentionally increasing or decreasing the number of votes
received by a candidate is inherently immoral, since it is
done with malice and intent to injure another.136
Similarly, consider the Court’s long quandary on possession and use
of illegal firearms. In 1994, the Court, in People v. De Gracia,137 asked:
[I]s the mere fact of physical or constructive possession
sufficient to convict a person for unlawful possession of
firearms or must there be an intent to possess to constitute a
violation of the law? This query assumes significance since
the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good
faith and absence of criminal intent are not valid
defenses.138
It answered this query based on the general rule again, to conclude
that the crime is malum prohibitum and mens rea is immaterial:
When the crime is punished by a special law, as a rule,
intent to commit the crime is not necessary. It is sufficient
that the offender has the intent to perpetrate the act
prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A
person may not have consciously intended to commit a
crime; but he did intend to commit an act, and that act is,
by the very nature of things, the crime itself. In the first
(intent to commit the crime), there must be criminal intent;
in the second (intent to perpetrate the act) it is enough that
the prohibited act is done freely and consciously.139
The Court, however, noted that the special intent of animus
possedendi must be read into the equation and finding that “there is no doubt
in our minds that appellant De Gracia is indeed guilty of having
intentionally possessed several firearms, explosives and ammunition
without the requisite license or authority therefore”140 affirmed the
defendant’s conviction. Note how the Court discussed this special intent:
136 Id. at 623.
137 G.R. No. 102009, 233 SCRA 716 (S.C., July 6, 1994) (Phil.).
138 Id. at 726.
139 Id.
140 Id. at 727.
122 Asian-Pacific Law & Policy Journal [Vol. 20:3
In the present case, a distinction should be made between
criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict
a person for illegal possession of a firearm, it must still be
shown that there was animus possidendi or an intent to
possess on the part of the accused. Such intent to possess is,
however, without regard to any other criminal or felonious
intent which the accused may have harbored in possessing
the firearm.141
This problem is more complicated than this. Consider People v.
Quijada,142 which had to iron out the doctrine involving the aggravating
effects of illegal possession of firearms with the mala in se prescriptions for
homicide or murder in the Revised Penal Code. Recalling De Gracia, the
Court said:
Murder and homicide are defined and penalized by the
Revised Penal Code as crimes against persons. They
are mala in se because malice or dolo is a necessary
ingredient therefor. On the other hand, the offense of illegal
possession of firearm is defined and punished by a special
penal law, P.D. No. 1866. It is a malum prohibitum which
the lawmaker, then President Ferdinand E. Marcos, in the
exercise of his martial law powers, so condemned not only
because of its nature but also because of the larger policy
consideration of containing or reducing, if not eliminating,
the upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and
manufactured firearms, ammunition, and explosives.
If intent to commit the crime were required, enforcement of
the decree and its policy or purpose would be difficult to
achieve.
Hence, there is conceded wisdom in punishing illegal
possession of firearm without taking into account the
criminal intent of the possessor. All that is needed is intent
to perpetrate the act prohibited by law, coupled, of course,
by animus possidendi. However, it must be clearly
understood that this animus possidendi is without regard to
any other criminal or felonious intent which an accused
may have harbored in possessing the firearm.143
141 Id. at 726.
142 G.R. No. 115008, 259 SCRA 191 (S.C., July 24, 1996) (Phil.).
143 Id. at 228 (citations omitted).
2019 Nadate 123
Finding itself in a theoretical quagmire, the Court eventually gave
up even trying to make sense of the mala dichotomy, resignedly saying that
“[a] long discourse then on the concepts of malum in se and malum
prohibitum and their distinctions is an exercise in futility.”144
Seeing the majority’s problem, Justice Regino Hermosisima
proposed a simple solution in his concurrence:
Whether or not in a given case the statute is to be construed
as forbidding the doing of an act and criminalizing the same
without regard to the intent of the perpetrator of the act, is
to be determined by the court by considering the subject
matter of the prohibition as well as the language of the
statute, thereby ascertaining the intention of the lawmaker.
The index of whether or not a crime is malum prohibitum is
not its form, that is, whether or not it is found in the Revised
Penal Code or in a special penal statute, but the legislative
intent that underlies its continuing existence as part of the
law of the land.145
144 Id. at 229 (emphasis added).
145 Id. at 269 (Hermosisima, Jr., J., concurring). See also Justice Regalado’s
separate opinion:
“Nor should we hold a ‘judicial prejudice’ from the fact that the two
forms of illegal possession of firearms in Presidential Decree No. 1866
are mala prohibita. On this score, I believe it is time to disabuse our
minds of some superannuated concepts of the difference between mala
in se and mala prohibita. I find in these cases a felicitous occasion to
point out this misperception thereon since even now there are instances
of incorrect assumptions creeping into some of our decisions that if the
crime is punished by the Revised Penal Code, it is necessarily a malum
in se and, if provided for by a special law, it is a malum prohibitum.
It was from hornbook lore that we absorbed the distinctions given by
text writers, claiming that: (1) mala in se require criminal intent on the
part of the offender; in mala prohibita, the mere commission of the
prohibited act, 4regardless of intent, is sufficient; and (2) mala in
se refer to felonies in the Revised Penal Code, while mala prohibita are
offenses punished under special laws.
The first distinction is still substantially correct, but the second is not
accurate. In fact, even in the Revised Penal Code there are felonies
which are actually and essentially mala prohibita. To illustrate, in time
of war, and regardless of his intent, a person who shall have
correspondence with a hostile country or territory occupied by enemy
troops shall be punished therefor. An accountable public officer who
voluntarily fails to issue the required receipt for any sum of money
officially collected by him, regardless of his intent, is liable for illegal
exaction. Unauthorized possession of picklocks or similar tools,
regardless of the possessor's intent, is punishable as such illegal
124 Asian-Pacific Law & Policy Journal [Vol. 20:3
B. Overcriminalization from an Overzealous Reading?
From this review of jurisprudence, it has become clear that the mala
dichotomy is unworkable. It cannot hold water by its internal contradictions
alone. But, as shown in ABS-CBN Corp. and Asistio, both decided less than
five years ago, the Supreme Court has not disabused themselves of this
faulty idea that treats mens rea without respect to legislative intent or the
nature of the offense.
Unfortunately, this issue extends beyond legal theory or methods;
the prosecution or conviction that follows the legal debate and discourse
impact real people. As long as this flawed conception lives in our
jurisprudence, the unintended consequence of overcriminalization and
overpenalization exists. In this section, we give several examples.
In United Coconut Planters Bank v. Looyuko,146 the Court reiterated
that the Trust Receipts Law is a crime malum prohibitum and “[t]here is no
requirement to prove intent to defraud.”147 But, note that the Trust Receipts
Law is worded as to attach it to the Revised Penal Code offense of estafa, a
crime malum in se. Specifically, the pertinent section provides:
Sec. 13. Penalty clause. - The failure of an entrustee to turn
over the proceeds of the sale of the goods, documents or
instruments covered by a trust receipt to the extent of the
amount owing to the entruster or as appears in the trust
receipt or to return said goods, documents or instruments if
they were not sold or disposed of in accordance with the
terms of the trust receipt shall constitute the crime of estafa,
punishable under the provisions of Article Three Hundred
and Fifteen, Paragraph One (b) of Act Numbered Three
Thousand Eight Hundred and Fifteen, as amended,
otherwise known as the Revised Penal Code. If the violation
or offense is committed by a corporation, partnership,
association or other juridical entities, the penalty provided
for in this Decree shall be imposed upon the directors,
possession. These are felonies under the Revised Penal Code but
criminal intent is not required therein.
On the other hand, I need not mention anymore that there are now in
our statutes so many offense punished under special laws but wherein
criminal intent is required as an element, and which offenses are
accordingly mala in se although they are not felonies provided for in
the Code.” Id. at 251-53 (Regalado, J., concurring in part and
dissenting in part).
146 G.R. No. 156337, 534 SCRA 322 (S.C., Sept. 28, 2007) (Phil.).
147 Id. at 335. Citing Ong v. Court of Appeals, G.R. No. 119858, 401 SCRA 648,
658 (S.C., Apr. 29, 2003) (Phil.).
2019 Nadate 125
officers, employees or other officials or persons therein
responsible for the offense, without prejudice to the civil
liabilities arising from the criminal offense.148
Thus, despite this statement, which the Court said was a dictate of
jurisprudence, it had to add:
On the other hand, the elements of estafa under Article 315
(1-b) of the RPC are as follows: (1) that money, goods, or
other personal properties are received by the offender in
trust, or on commission, or for administration, or under any
other obligation involving the duty to make delivery of, or
to return, the same; (2) that there is a misappropriation or
conversion of such money or property by the offender or
denial on his part of such receipt; (3) that such
misappropriation or conversion or denial is to the prejudice
of another; and, (4) that there is a demand made by the
offended party on the offender. Moreover, it is a settled rule
that failure to account upon demand, for funds or property
held in trust, is circumstantial evidence of
misappropriation.
On the basis of the above-quoted findings of the DOJ
Secretary, coupled with the documented allegations of
petitioner in its complaint-affidavit, as well as the failure of
respondents to substantiate their defenses, it appears that
there exists a sufficient ground to engender a well-founded
belief that the crime of estafa as defined under Article 315
(1-b), in relation to Section 13 of P.D. No. 115, has been
committed; and that the respondents are probably guilty
thereof and should be held for trial. Hence, the DOJ
Secretary committed grave abuse of discretion in directing
the withdrawal of the information for estafa filed against
them.149
Consider, too, the law on illegal recruitment. Here, the 2012 case of
People v. Chua150 is illustrative. Chua involved the appeal of defendant
Melissa Chua from a trial court decision that found her guilty beyond
reasonable doubt of illegal recruitment in the large scale, as well as four
counts of estafa.151 What is material in this case is this Court’s
148 Presidential Decree No. 115, § 13.
149 United Coconut Planters Bank, 534 SCRA at 335-36 (citations omitted).
150 G.R. No. 187052, 680 SCRA 575 (S.C., Sept. 13, 2012) (Phil.).
151 “Before us is an appeal from the September 15, 2008 Decision of the Court
of Appeals in CA-G.R. CR-H.C. No. 01006. The Court of Appeals had affirmed with
126 Asian-Pacific Law & Policy Journal [Vol. 20:3
pronouncement: “Worth stressing, the Migrant Workers and Overseas
Filipinos Act of 1995 is a special law, a violation of which is malum
prohibitum, not mala in se. Intent is thus, immaterial and mere commission
of the prohibited act is punishable.” What are these prohibited acts? For
Chua, the information provides the following:
[She] did then and there willfully, unlawfully, for fee,
recruit and promise employment/job placement to [three
victims] without first having secured the required license
from the Department of Labor and Employment as required
by law, and charge or accept directly or indirectly from said
complainants various amounts as placement fees in
consideration for their overseas employment, which
amounts are in excess of or greater than that specified in
the schedule of allowable fees prescribed by the POEA, and
without valid reasons and without the fault of said
complainants, failed to actually deploy them and failed to
reimburse expenses incurred in connection with their
documentation and processing for purposes of their
deployment.152
Now, never mind the fact that the fiscal used “willfully.” Instead,
look at the law’s own definitions of what, among many, would constitute
illegal recruitment: “To give any false notice, testimony, information or
document or commit any act of misrepresentation for the purpose of
securing a license or authority”;153 “To induce or attempt to induce a worker
already employed to quit his employment in order to offer him another
unless the transfer is designed to liberate a worker from oppressive terms
and conditions of employment”;154 “To influence or attempt to influence any
persons or entity not to employ any worker who has not applied for
employment through his agency;”155 “To obstruct or attempt to obstruct
modification the Decision of the Regional Trial Court (RTC) of Manila, Branch 33, in
Criminal Case No. 03-217999-403. The RTC found appellant Melissa Chua, a.k.a. Clarita
Ng Chua, guilty beyond reasonable doubt of illegal recruitment in large scale and four
counts of estafa. The Court of Appeals modified the penalty imposed upon appellant for
each count of estafa to an indeterminate penalty of imprisonment for 4 years and 2
months of prision correccional as minimum, to 13 years of reclusion temporal, as
maximum.” Id. at 579.
152 Chua, 680 SCRA at 579-80 (emphasis added).
153 Republic Act. No. 8042 (Migrant Workers and Overseas Filipinos Act of
1995), § 6(c). This law was subsequently amended by Republic Act No. 10022.
154 Republic Act. No. 8042, § 6(d).
155 Republic Act. No. 8042, § 6(e).
2019 Nadate 127
inspection by the Secretary of Labor and Employment or by his duly
authorized representative”.156
At first blush, it fails reason to understand how misrepresentation,
inducement, influencing, or obstructing can be done inadvertently, i.e.,
without any general criminal intent whatsoever. But because the law in
question is a “special law,” apparently these acts can all be done
inadvertently and would still result to an offense, which now is punishable
by even graver penalties.157 Yet, look at estafa, which is graduated to take
into account the damage created.
And so, Chua reaffirms that it is “well-established in jurisprudence
that a person may be charged and convicted for both illegal recruitment and
estafa”—the reason being that “illegal recruitment is malum prohibitum,
while estafa is mala in se” and “[i]n the first, the criminal intent of the
accused is not necessary for conviction,” while “[i]n the second, such intent
is imperative.158
Now, what we can gather from this declaration is that the mala
distinction has been co-opted to circumvent double jeopardy prohibitions.
And we do not see this in illegal recruitment alone. Much earlier, in Ada v.
Virola,159 the Court ruled that while Section I of Batas Pambansa Blg. 22 or
the Bouncing Checks Act and Article 315, par. 2(d) of the RPC is based on
the same act of issuing bouncing checks, the fact that the former is an
offense malum prohibitum and the latter, malum in se, is sufficient to create
a distinct identity of offenses for which double jeopardy may not be
invoked.160
156 Republic Act. No. 8042, § 6(g).
157 The penalties for illegal recruitment under this Section is “imprisonment of
not less than twelve (12) years and one (1) day but not more than twenty (20) years and a
fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos
(P2,000,000.00).” Republic Act. No. 8042, § 7, as amended by Republic Act No. 10022,
§ 6.
158 Chua, 680 SCRA at 591.
159 G.R. No. 82346, 172 SCRA 336 (S.C., Apr. 17, 1989) (Phil.).
160 “The prohibition is against a second jeopardy for the same offense. The plea
of double jeopardy applies where the offenses in the two informations [sic] are the same
in law and in fact. It is not necessarily decisive that the two offenses may have material
facts in common, or that they are similar, where they are not in fact the same. The test is
not whether the defendant has already been tried for the same act, but whether he has
been put in jeopardy for the same offense. A single act may offend against two (or more)
entirely distinct and unrelated provisions of law, and if one provision of law requires
proof of an additional fact or element while the other does not, an acquittal or conviction
or a dismissal of the information under one does not bar prosecution under the other.” Id.
at 340 (citation omitted).
128 Asian-Pacific Law & Policy Journal [Vol. 20:3
Consider, too, the landmark case of Disini v. Secretary of Justice,161
where several provisions of the Cybercrime Prevention Act of 2012 were
challenged, including Section 7, which provides that: “A prosecution under
this Act shall be without prejudice to any liability of any provision of the
Revised Penal Code, as amended, or special laws.”
In Disini, the Court opted to defer any decision regarding the
constitutionality of the section,162 but nevertheless affirmed the
government’s position that:
[A] single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the
Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of
the other although both offenses arise from the same fact, if
each crime involves some important act which is not an
essential element of the other.163
Indeed, this position is broadly supported by jurisprudence. For
instance, the Court, in Soriano v. People164 said that “[j]urisprudence teems
with pronouncements that a single act or incident might offend two or more
entirely distinct and unrelated provisions of law.”165 More clearly, in People
v. Doriquez,166 the Court noted:
It is a cardinal rule that the protection against double
jeopardy may be invoked only for the same offense or
161 G.R. No. 203335, 716 SCRA 237 (S.C., Feb. 18, 2014) (Phil.).
162 Id., at 333. “With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct application of
Section 7 to actual cases.”
163 Id. at 332-33 (citation omitted).
164 G.R. No. 159517, 591 SCRA 244 (S.C., June 30, 2009) (Phil.). Other
examples where the Court found no double jeopardy include simultaneous prosecution
under Article 365 for criminal negligence and Article 275 for abandonment under the
RPC (Lamera v. Court of Appeals, G.R. No. 93475, 198 SCRA 186, (S.C., June 5, 1991)
(Phil.); P.D. 1866 and the RPC provision on murder (see People v. Tac-an, G.R. No.
76338, 182 SCRA 601 (S.C., Feb. 26, 1990) (Phil.); People v. Tiozon, G.R. No. 89823,
198 SCRA 368 (S.C., June 19, 1991) (Phil.), R.A. 337 and P.D. No. 1795 (Soriano); and
Section 7 of R.A. No. 3060 and Article 201(3) of the RPC (People v. City Court of
Manila, Branch VI, G.R. No. L-36528, 154 SCRA 175 (S.C., Sept. 24, 1987) (Phil.).
165 Soriano, 591 SCRA at 256. The case cites the following decisions: Nierras v.
Dacuycuy, G.R. No. 59568, 181 SCRA 1 (S.C., Jan. 11, 1990) (Phil.), People v.
Doriquez, G.R. No. 24444, 24 SCRA 163 (S.C., July 29, 1968) (Phil.); People v. Alvarez,
G.R. No. 19914, 45 Phil. 472 (S.C., Nov. 27, 1923) (Phil.); People v. Cabrera, G.R. No.
17748, 43 Phil. 64 (S.C., Mar. 4, 1922) (Phil.); United States v. Capurro, G.R. No. 2408,
7 Phil. 24. (S.C., Nov. 24, 1906) (Phil.).
166 24 SCRA 163 (1968).
2019 Nadate 129
identical offense. A single act may offend against two (or
more) entirely distinct and unrelated provisions of law, and
if one provision requires proof of an additional fact or
element which the other does not, an acquittal or conviction
or a dismissal of the information under one does not bar
prosecution under the other. Otherwise phrased, where two
different laws (or articles of the same code) define two
crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from
the same facts, if each crime involves some important act
which is not an essential element of the other.167
Now, let us return to the idea that the Court has forwarded using the
mala dichotomy: if an act constitutes an offense in the Revised Penal Code
and a special law, then the said act can be prosecuted under both laws
because the former is malum in se and the other is malum prohibitum. This
position is notwithstanding the fact that the only difference in their element
is the putative existence of intent in the former and the repudiation of intent
in the latter.
Unfortunately, the confusion as regards the mala dichotomy is so
deeply rooted and the courts now have a hard time separating themselves
from the mistaken notion. For example, in a concurring opinion the
landmark case of Imbong v. Ochoa:168
Petitioners contend that Section 23(a)(1) above is void for
vagueness. But some points out that the term “knowingly”
used in the law, assailed by petitioners as vague, is
sufficiently clear in that it means awareness or
deliberateness that is intentional and connotes malice.
But “knowingly” and “maliciously” have meanings that set
them apart.
“Knowingly” means mere awareness or deliberateness.
“Maliciously,” on the other hand, connotes an “evil
intention.” If the law meant to include malice as an
ingredient of the offense described in Section 23(a)(1), it
would have added the term “maliciously” to “knowingly.”
Nothing in the wordings of the law implies malice and the
need for criminal intent. The crime as described is malum
prohibitum.169
167 Id. at 171-72 (emphasis added) (citations omitted).
168 G.R. No. 204819, 721 SCRA 146 (S.C., Apr. 8, 2014) (Phil.).
169 Id. at 667 (Abad, J., concurring) (citation omitted).
130 Asian-Pacific Law & Policy Journal [Vol. 20:3
What this declaration means is that even if the law provides the term
“knowingly” as to qualify an act, intent is still immaterial because the crime
itself is proscribed by a special law. If this concurring opinion were to be
followed, only the term “maliciously” can be used to denote intent. Without
the word “maliciously,” mens rea cannot be read from a special law.
All these ideas about mens rea are problematic. But, more than that,
the Court’s legal acrobatics presents a clear danger to criminal justice. After
all, criminal laws are subject to strict construction170 because their
enforcement means the possible abrogation of property and liberty171—or
even life.172
The relaxation of the rules through the retention of standards like the
malum in se/malum prohibitum within its contemporary construction
170 People v. Garcia, G.R. No. L-2873, 85 Phil. 651, 656 (S.C., Feb. 28, 1950)
(Phil.) (“Criminal and penal statutes must be strictly construed, that is, they cannot be
enlarged or extended by intendment, implication, or by any equitable considerations. In
other words, the language cannot be enlarged beyond the ordinary meaning of its terms in
order to carry into effect the general purpose for which the statute was enacted. Only
those persons, offenses, and penalties, clearly included, beyond any reasonable doubt,
will be considered within the statute's operation. They must come clearly within both the
spirit and the letter of the statute, and where there is any reasonable doubt, it must be
resolved in favor of the person accused of violating the statute; that is, all questions in
doubt will be resolved in favor of those from whom the penalty is sought.”); see also
People v. Purisima, G.R. No. L-42050, 86 SCRA 542, 562 (S.C., Nov. 20, 1978) (Phil.)
(“American jurisprudence sets down the reason for this rule to be ‘the tenderness of the
law of the rights of individuals; the object is to establish a certain rule by conformity to
which mankind would be safe, and the discretion of the court limited.’ The purpose is not
to enable a guilty person to escape punishment through a technicality but to provide a
precise definition of forbidden acts.”).
171 “Being an exception and thus in derogation of the Constitution, it must then
be strictly construed against the State and liberally in favor of the people.” Echegaray v.
Sec’y of Justice, G.R. No. 132601, 301 SCRA 96, 129 (S.C., Jan. 19, 1999) (Phil.)
(Panganiban, J., separate opinion).
172 The Philippine Constitution allows the death penalty for heinous offenses,
see 1987 CONST. (Phil.), art. III, §19(1). The capital punishment was, however,
suspended by Republic Act No. 93646, passed in 2006.
2019 Nadate 131
becomes an attack of due process.173 As intimated in People v.
Temporada:174
It is an ancient rule of statutory construction that penal
statutes should be strictly construed against the government
or parties seeking to enforce statutory penalties and in favor
of the persons on whom penalties are sought to be imposed.
This simply means that words are given their ordinary
meaning and that any reasonable doubt about the meaning
is decided in favor of anyone subjected to a criminal
statute. This canon of interpretation has been accorded the
status of a constitutional rule under principles of due
process, not subject to abrogation by statute.175
Clearly, jurisprudential reform is critically warranted.
III. THE RATIONAL APPROACH TO MENS REA INTERPRETATION
The divergence in case law from the introduction of Go Chico,
therefore, is not so much a conscious adoption of a more socially relevant
or contextually grounded doctrine that would justify parting away from
original legal rule as it is, simply, an erroneous adoption of an opinion that
by stare decisis has been serially reproduced to what it is today. Correcting
this divergence—this legal aberration—therefore, means going back in time
before the bifurcation in jurisprudence happened and following how Anglo-
American tradition has continued in its ordinary course.
The rule on mens rea, in general, and the mala dichotomy, in
particular, as it stands in American constitutional and criminal law is
articulated in the landmark case of Morissette v. United States.176 It is, in
173 See Romualdez v. Commission on Elections, G.R. No. 167011, 553 SCRA
370, 435 (S.C., Apr. 30, 2008) (Phil.) (Carpio, J., dissenting) (“The due process clause,
which guarantees that no person shall be deprived of life, liberty or property without due
process of law, requires that citizens are given sufficient notice or warning of what is
lawful and unlawful conduct under a penal statute. To enforce this guarantee, courts have
developed the void for vagueness doctrine. The void for vagueness doctrine expresses the
rule that for an act to constitute a crime, the law must expressly and clearly declare such
act a crime. A related doctrine is that penal statutes are construed strictly against the state
and liberally in favor of the accused.”).
174 G.R. No. 173473, 574 SCRA 258 (S.C., Dec. 17, 2008) (Phil.).
175 Id. at 307 (citation omitted) (emphasis modified).
176 342 U.S. 246 (1952). Morisette remains to be binding precedent. See Barry
Jeffrey Stern, Consciousness of Wrongdoing: Mens Rea in Alaska, 1 ALASKA L. REV. 1
(1984); John S. Baker, Jr. & William J. Haun, The “Mens Rea” Component Within the
Issue of the Over-Federalization of Crime, 14 ENGAGE 24 (2013); Catherine L. Carpenter,
On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L.
REV. 313 (2004); Shannyn Gaughan, Is It Automatic?: The Mens Rea Presumption and
132 Asian-Pacific Law & Policy Journal [Vol. 20:3
the own words of the United States Supreme Court, “a profoundly
insignificant case to all except its immediate parties had it not been so tried
and submitted to the jury as to raise questions both fundamental and far-
reaching in federal criminal law.”177
A. Reclaiming the Proper Meaning of the “Mala Dichotomy”
Morissette involved the issue of whether an offense which provided
that “whoever embezzles, steals, purloins, or knowingly converts”178
property of the United States is punishable by fine and imprisonment
required the element of criminal intent. This stemmed, innocuously enough,
when the defendant Morissette went hunting in December of 1948 in a
wooded area that once was a practice bombing range over which the Air
Force dropped simulated bombs at ground targets.
Seeing the littered casings,179 he loaded three tons of them on his
truck with the idea of salvaging them for profit.180 As the Court found:
The loading, crushing and transporting of these casings
were all in broad daylight, in full view of passers-by,
without the slightest effort at concealment. When an
investigation was started, Morissette voluntarily, promptly
and candidly told the whole story to the authorities, saying
that he had no intention of stealing, but thought the
the Interpretation of the Machinegun Provision of 18 U.S.C. §924(c) in United States v.
Burwell, 34 (E. Supp.) BOSTON COLLEGE J. L. & SOC. JUSTICE 53 (2014); Michele
Cotton, A Foolish Consistency: Keeping Determinism Out of the Criminal Law, 15 PUB.
INTEREST L.J. 1 (2005); Joshua D. Greenberg & Ellen C. Brotnam, Strict Vicarious
Criminal Liability for Corporations and Corporate Executives: Stretching the
Boundaries of Criminalization, 51 AM. CRIM. L. REV. 79 (2014).
177 Morissette, 342 U.S. at 247 (emphasis added).
178 “Whoever embezzles, steals, purloins, or knowingly converts to his use or the
use of another, or without authority, sells, conveys or disposes of any record, voucher,
money, or thing of value of the United States or of any department or agency thereof, or
any property made or being made under contract for the United States or any department
or agency thereof; […] Shall be fined not more than $10,000 or imprisoned not more than
ten years, or both; but if the value of such property does not exceed the sum of $100, he
shall be fined not more than $1,000 or imprisoned not more than one year, or both.” 18
U.S.C. § 641.
179 “Spent bomb casings were cleared from the targets and thrown into piles ‘so
that they will be out of the way.’ They were not sacked or piled in any order, but were
dumped in heaps, some of which had been accumulating for four years or upwards, were
exposed to the weather and rusting away.” Morissette, 342 U.S. at 247.
180 On his trial, Morissette, as he had at all times told investigating officers,
testified that, from appearances, he believed the casings were cast-off and abandoned,
that he did not intend to steal the property, and took it with no wrongful or criminal
intent.” Id. at 248-49.
2019 Nadate 133
property was abandoned, unwanted and considered of no
value to the Government.181
Nevertheless (much like the entrepreneurial Go Chico), he was
indicted, convicted, and sentenced to imprisonment for two months or to
pay a fine of $200.182 The trial court did not give credence to his defense
that he took the weathered casings without criminal intent. On appeal, the
Court of Appeals affirmed his conviction,183 taking it further as to say that
his defense of lack of intent actually meant that he “was guilty of its
violation beyond a shadow of doubt, as evidenced even by his own
admissions.”184 The Court of Appeals, moreover, ruled “that th[e] particular
offense require[d] no element of criminal intent” because of “the failure of
Congress to express such a requisite.”185 The Supreme Court reversed.
It did so by first saying that the “culpable state of mind” or mens rea
is an “ancient requirement”; it is “no provincial or transient notion.”186
Instead, “[i]t is as universal and persistent in mature systems of law as belief
in freedom of the human will and a consequent ability and duty of the
normal individual to choose between good and evil.”187
By dissecting the historical treatment of mens rea in common law,188
it held that there is judicial, and legislative, recognition that “intent was so
inherent in the idea of the offense that it required no statutory
affirmation.”189 But, despite this “unanimity,”190 the Court recognized that
there are “duties […] sanctioned by a more strict civil liability”191 because
of the “peculiar nature and quality of the offense.”192 For such cases,
“legislation dispenses with the conventional requirement for criminal
conduct – awareness of some wrongdoing [i]n the interest of the larger
181 Id. at 248.
182 Id.
183 Morisette v. United States, 187 F.2d 427, 431 (6th Circ. 1951).
184 Morissette, 342 U.S. at 249.
185 Id. at 250.
186 Id.
187 Id. See also n.4, quoting Roscoe Pound, Introduction to Sayre, in CASES ON
CRIMINAL LAW (1927) (“Historically, our substantive criminal law is based upon a theory
of punishing the vicious will. It postulates a free agent confronted with a choice between
doing right and doing wrong and choosing freely to do wrong.”).
188 Morissette, 342 U.S. at 251-54.
189 Id. at 252.
190 Id.
191 Id. at 254.
192 Id. at 259.
134 Asian-Pacific Law & Policy Journal [Vol. 20:3
good,” thereby “put[ting] the burden of acting at hazard upon a person
otherwise innocent but standing in responsible relation to a public
danger.”193
There are, however, difficulties with the Court’s acknowledgment
of true mala prohibita crimes or “public welfare crimes.” Quoting United
States v. Dotterweich,194 it conceded: “Hardship there doubtless may be
under a statute which thus penalizes the transaction though consciousness
of wrongdoing be totally wanting.”195 But this is not to say that the default
approach should be to construe the legislature’s silence as having removed
intent as an element. Precisely because of the “unanimity” and
fundamentality of mens rea in criminal law tradition, the opposite should be
the case. Thus, the Court held:
Congress, therefore, omitted any express prescription of
criminal intent from the enactment before us in the light of
an unbroken course of judicial decision in all constituent
states of the Union holding intent inherent in this class of
offense, even when not expressed in a
statute. Congressional silence as to mental elements in an
Act merely adopting into federal statutory law a concept of
crime already so well defined in common law and statutory
interpretation by the states may warrant quite contrary
inferences than the same silence in creating an offense new
to general law, for whose definition the courts have no
guidance except the Act. […]
[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of
ideas that were attached to each borrowed word in the
body of learning from which it was taken and the meaning
its use will convey to the judicial mind unless otherwise
instructed. In such case, absence of contrary direction may
be taken as satisfaction with widely accepted definitions,
not as a departure from them.196
To rule otherwise, the Court warranted, would be to sanction
injustice for convenience; it is to:
radically […] change the weights and balances in the
scales of justice. The purpose and obvious effect of doing
193 Id. at 260.
194 320 U.S. 277 (1943).
195 Id. at 280-81, 284.
196 Morissette, 342 U.S. at 261-63 (emphasis added).
2019 Nadate 135
away with the requirement of a guilty intent is to ease the
prosecution's path to conviction, to strip the defendant of
such benefit as he derived at common law from innocence
of evil purpose, and to circumscribe the freedom heretofore
allowed juries. Such a manifest impairment of the
immunities of the individual should not be extended to
common law crimes on judicial initiative.197
From these discussions, the Court held that “mere omission […] of
any mention of intent will not be construed as eliminating that element from
the crimes” altogether.198 It held, too, that “[w]here intent of the accused is
an ingredient of the crime charged, its existence is a question of fact”199 that
cannot be presumed200 because “this presumption would conflict with the
overriding presumption of innocence with which the law endows the
accused and which extends to every element of the crime.”201
B. A Radical Reconstruction of Case Law
The implications of this recommended re-reading would be far-
reaching. In a survey of laws passed from January to March 2019 alone, at
least seven have penal provisions.202 Republic Act No. 11188 alone defines
at least 19 discrete offenses.203 Retaining the current construction means
that, in most of these offenses, criminal intent would be presumably
immaterial because they are defined under special laws—despite terms like
“intentional” attached to an offense.204 It would also mean that a person may
be prosecuted under both any these special laws and the Revised Penal Code
for the same act. In the case of Republic Act No. 11188, this leads to possible
197 Id. at 263.
198 Id.
199 Id. at 274.
200 Id.
201 Id.
202 Namely: Republic Act No. 11235 (Motorcycle Crime Prevention Act);
Republic Act No. 11241 (The Philippine Occupational Therapy Law); Republic Act No.
11222 (Simulated Birth Rectification Act); Republic Act No. 11229 (Child Safety in
Motor Vehicles Act); Republic Act No. 11232 (Revised Corporation Code of the
Philippines); Republic Act No. 11223 (Universal Health Care Act); Republic Act No.
11188 (Special Protection of Children in Situations of Armed Conflict Act).
203 Republic Act No. 11188, § 9.
204 For instance, “intentional maiming” and “intentional delayed reporting”
under Sections 9(a)(3) and 9(d)(3), respectively, of Republic Act No. 11188.
136 Asian-Pacific Law & Policy Journal [Vol. 20:3
multiple prosecutions for acts like “killing,”205 “rape,”206 or “arbitrary
detention.”207
Recasting the law based on a correct string of jurisprudence,
Morisette (and even Go Chico) requires us to deal with the question of
statutory construction in a more cumbersome approach. First, mens rea or
scienter should be read as requisite in the statutory definitions of offenses.
Second, only in the narrow application where expressly removed by
legislative fiat or by the nature and subject matter of the penal provision as
a narrowly tailored strict liability crime may intent be considered immaterial
and the corollary defense of good faith unavailing.208 This puts the onus to
the judiciary to be more circumspect in its duty of construing the law, and
the legislature to be more prudent in crafting and wording penal statutes—
not to citizens or individuals who are otherwise presumed innocent for all
and every element of a crime.
CONCLUSION
There are important lessons that can be gathered from the
Philippines’ experience with the mala dichotomy. How it was adopted
reflects the history of the nation as a colony and demonstrates how easy it
is to transplant legal concepts with far-reaching implications because of the
dual or “hybrid” nature of the legal system. This scope or diversity in legal
sources has given the Supreme Court flexibility in interpreting the law. It
has, as a result, supported its decision not only with decisions of the United
States’ federal and state courts, but also with decisions of the courts of
Spain209 and even other jurisdictions210 or views of commentators and
scholars from both hemispheres.
205 Republic Act No. 11188, § 9(a)(1). Compare with Act No. 3815, art. 246-
249.
206 Republic Act No. 11188, § 9(a)(4). Compare with Act No. 3815, art. 335.
207 Republic Act No. 11188, § 9(d)(6). Compare with Act No. 3815, art. 124.
208 The Supreme Court has done this for only a few cases. For instance, in
Dungo v. People, the Court carefully examined the legislative history of Republic Act
No. 8049 or the Anti-Hazing Law of 1995 to characterize it as a crime malum
prohibitum. See Dungo v. People, G.R. No. 209464, 761 SCRA 375, 410-414 (S.C., July
1, 2015) (Phil.) (extensively citing Senate deliberations).
209 See, e.g., Ivler v. Modesta-San Pedro, G.R. No. 172716, 635 SCRA 191, 206
n.20 (S.C., Nov. 17, 2010) (Phil.), quoting People v. Buan, G.R. No. L-25366, 22 SCRA
1383, 1386 (S.C., Mar. 29, 1968) (Phil.); Valenzuela v. People, G.R. No. 160188, 525
SCRA 306, 328 (S.C., June 21, 2007) (Phil.); People v. Bañez, G.R. No. 125849, 301
SCRA 248, 258 (S.C., Jan. 20, 1999) (Phil.), quoting People v. Formigones, G.R. No. L-
3246, 87 Phil. 658, 661 (S.C., Nov. 29, 1950) (Phil.).
210 See, e.g., Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay,
G.R. No. 171947, 574 SCRA 661, 688 nn.36-37 (S.C., Dec. 18, 2008) (Phil.) (adopting
2019 Nadate 137
How the treatment of mens rea became distorted also shows how
stare decisis could ingrain a wrong idea and make it law. How it was
misconstrued ultimately validates Justice Robert H. Jackson’s famous line
in Brown v. Allen,211 that the Supreme Court is not final because it is
infallible, but that it is infallible because it is final—and because its
decisions form part of the law of the land, every footnote or in-text citation
becomes inevitably part of it as well.
This potential for serializing and institutionalizing mistakes,
therefore, points to the need to be vigilant at how our court of last resort
justifies its decisions. Cut and dry formulas like the mala dichotomy may
not serve the ends of justice—to the contrary, it may even frustrate this—
even if it saves time from reading legislative deliberation records and
unclogs dockets a lot faster.
As such, much like the categorical denial in Morissette of a “closed
definition” as to when intent is material or not,212 our courts must reject its
contemporary and historically incongruous treatment of mens rea to address
issues of over-criminalization and real-life due process infringements.
Criminal laws, after all, embody the State’s supreme exercise of
authority.213 They are the foremost manifestation of what a “law” is214 and
their coercive nature, for the pain of punishment, is designed to ensure
conformity and civility and preserve the social order.
the Indian Supreme Court’s use of the doctrine of continuing mandamus); MVRS Publ’n,
Inc. v. Islamic Da’wah Council of the Philippines, Inc, G.R. No. 135306, 396 SCRA 210,
252 n.18 (S.C., Jan. 28, 2003) (Phil.) (citing the decisions of the Supreme Court of
Canada); Vivares v. St. Theresa’s Coll., G.R. No. 202666, 737 SCRA 92, 112 n.26 (S.C.,
Sept. 29, 2014) (Phil.) (citing the decision of the South African High Court).
211 344 U.S. 443, 540 (1953) (Jackson, J., concurring).
212 Morissette, 342 U.S. at 260 (“Neither this Court nor, so far as we are aware,
any other has undertaken to delineate a precise line or set forth comprehensive criteria for
distinguishing between crimes that require a mental element and crimes that do not. We
attempt no closed definition, for the law on the subject is neither settled nor static.”).
213 Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L.
REV. 989, 994 (2010). (“[Q]uestions of state criminal power occupy a great deal of the
Constitution’s structure precisely because concentrated power in criminal matters was a
danger of which the Framers were well aware. They feared the tyranny of majorities that
would seek to oppress opponents through the use of criminal laws.”).
214 H. L. A. HART, THE CONCEPT OF LAW 33-35 (2d. ed., Clarendon Press, 1994)
(1961) (“It might be said, […] that whereas rules like those of the criminal law imposes
duty, power-conferring rules are recipes for creating duties. […] The first argument,
designed to show the fundamental identity of the two sorts of rule and to exhibit both as
coercive orders, fastens on the ‘nullity’ which ensues when some essential condition for
the exercise of the power is not fulfilled. This . . . is like the punishment attached to
criminal law. […] Th[is] argument […] show[s] the fundamental identity of power-
conferring rules with coercive orders by widening the meaning of a sanction or threatened
evil [or threats].”).
138 Asian-Pacific Law & Policy Journal [Vol. 20:3
But because the “social order depends on the widespread belief that
the authorities, and their political and legal framework, are legitimate,”215
criminal laws must, themselves, hinge on what Morissette calls, “the
general rule of law and the dictate of natural justice.”216 To do otherwise
would be to deny the “inviolability”217 that each person possesses—an
inviolability “founded on justice that even the welfare of society as a whole
cannot override.”218 Rejecting the status quo is, therefore, a natural
precondition to move forward as a truly “just and humane society”219 as the
Constitution conceives—for “laws and institutions no matter how efficient
and well-arranged must be reformed or abolished if they are unjust.”220
215 David J. Smith, The Foundations of Legitimacy, in LEGITIMACY AND
CRIMINAL JUSTICE 30, 30 (Tom R. Tyler et al., eds., 2007); see also Niklas Luhmann,
Soziologie des politischen Systems, in SOZIOLOGISCHE AUFKLÄRUNG 167 (1970), quoted
in JÜRGEN HABERMAS, LEGITIMATION CRISIS 98 (Thomas MacCarthy trans., Heinemann
1980) (1973) (“The law of a society is positivized when the legitimacy of pure legality is
recognized, that is, when law is respected because it is made by responsible decision in
accordance with definite rules.”).
216 Morissette, 342 U.S. at 274, quoting People v. Flack, 125 N.Y. 324, 334
(1891).
217 JOHN RAWLS, A THEORY OF JUSTICE 3 (rev. ed., 1991).
218 Id. (emphasis added).
219 CONST. (1987), pmbl. (Phil.).
220 RAWLS, supra note 217, at 3.