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.