Mala in Se and Mala Prohibita

SPECIAL PENAL LAWS
MALA IN SE AND MALA PROHIBITA

Violations of the Revised Penal Code are referred to as malum in se, which
literally means, that the act is inherently evil or bad or per se wrongful. On the
other hand, violations of special laws are generally referred to as malum
prohibitum.
Note, however, that not all violations of special laws are mala prohibita.
While intentional felonies are always mala in se, it does not follow that prohibited
acts done in violation of special laws are always mala prohibita. Even if the crime
is punished under a special law, if the act punished is one which is inherently
wrong, the same is malum in se, and, therefore, good faith and the lack of criminal
intent is a valid defense; unless it is the product of criminal negligence or culpa.
Likewise when the special laws requires that the punished act be committed
knowingly and wilfully, criminal intent is required to be proved before criminal
liability may arise.
When the act penalized is not inherently wrong, it is wrong only because a
law punishes the same.
For example, Presidential Decree No. 532 punishes piracy in Philippine
waters and the special law punishing brigandage in the highways. These acts are
inherently wrong and although they are punished under special law, the acts
themselves are mala in se; thus, good faith or lack of criminal intent is a defense.
Distinction between crimes punished under the Revised Penal Code and
crimes punished under special laws
1.
As to moral trait of the offender
In crimes punished under the Revised Penal Code, the moral trait of the
offender is considered. This is why liability would only arise when there is dolo or
culpa in the commission of the punishable act.
In crimes punished under special laws, the moral trait of the offender is not
considered; it is enough that the prohibited act was voluntarily done.
2.
As to use of good faith as defense
In crimes punished under the Revised Penal Code, good faith or lack of
criminal intent is a valid defense; unless the crime is the result of culpa
In crimes punished under special laws, good faith is not a defense
3.
As to degree of accomplishment of the crime
In crimes punished under the Revised Penal Code, the degree of

accomplishment of the crime is taken into account in punishing the offender; thus,
there are attempted, frustrated, and consummated stages in the commission of the
crime.
In crimes punished under special laws, the act gives rise to a crime only
when it is consummated; there are no attempted or frustrated stages, unless the
special law expressly penalize the mere attempt or frustration of the crime.
4.
As to mitigating and aggravating circumstances
In crimes punished under the Revised Penal Code, mitigating and

aggravating circumstances are taken into account in imposing the penalty since
the moral trait of the offender is considered.
In crimes punished under special laws, mitigating and aggravating
circumstances are not taken into account in imposing the penalty.
5.
As to degree of participation
In crimes punished under the Revised Penal Code, when there is more than
one offender, the degree of participation of each in the commission of the crime is
taken into account in imposing the penalty; thus, offenders are classified as
principal, accomplice and accessory.
In crimes punished under special laws, the degree of participation of the
offenders is not considered. All who perpetrated the prohibited act are penalized to
the same extent. There is no principal or accomplice or accessory to consider.
Questions & Answers
1.
Three hijackers accosted the pilot of an airplane. They compelled the pilot
to change destination, but before the same could be accomplished, the military
was alerted. What was the crime committed?
Grave coercion. There is no such thing as attempted hijacking. Under special
laws, the penalty is not imposed unless the act is consummated. Crimes
committed against the provisions of a special law are penalized only when the
pernicious effects, which such law seeks to prevent, arise.
2.
A mayor awarded a concession to his daughter. She was also the highest
bidder. The award was even endorsed by the municipal council as the most
advantageous to the municipality. The losing bidder challenged the validity of the
contract, but the trial court sustained its validity.
The case goes to the
Sandiganbayan and the mayor gets convicted for violation of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act). He appeals alleging his defenses
raised in the Sandiganbayan that he did not profit from the transaction, that the
contract was advantageous to the municipality, and that he did not act with intent
to gain. Rule.
Judgment affirmed. The contention of the mayor that he did not profit anything
from the transaction, that the contract was advantageous to the municipality, and
that he did not act with intent to gain, is not a defense. The crime involved is
malum prohibitum.
In the case of People v. Sunico, an election registrar was prosecuted for having
failed to include in the voters register the name of a certain voter. There is a
provision in the election law which proscribes any person from preventing or
disenfranchising a voter from casting his vote. In trial, the election registrar
raised as good faith as a defense. The trial court convicted him saying that good
faith is not a defense in violation of special laws. On appeal, it was held by the
Supreme Court that disenfranchising a voter from casting his vote is not wrong
because there is a provision of law declaring it as a crime, but because with or
without a law, that act is wrong. In other words, it is malum in se. Consequently,
good faith is a defense. Since the prosecution failed to prove that the accused
acted with malice, he was acquitted.
Test to determine if violation of special law is malum prohibitum or
malum in se
Analyze the violation: Is it wrong because there is a law prohibiting it or
punishing it as such? If you remove the law, will the act still be wrong?
If the wording of the law punishing the crime uses the word wilfully, then
malice must be proven. Where malice is a factor, good faith is a defense.
In violation of special law, the act constituting the crime is a prohibited act.
Therefore culpa is not a basis of liability, unless the special law punishes an
omission.
When given a problem, take note if the crime is a violation of the Revised
Penal Code or a special law.
3.
Distinguish between crimes mala in se and crimes mala prohibita.
Crimes mala in se are felonious acts committed by dolo or culpa as defined in the
Revised Penal Code. Lack of criminal intent is a valid defense, except when the
crime results from criminal negligence. On the other hand, crimes mala
prohibita are those considered wrong only because they are prohibited by
statute. They constitute violations of mere rules of convenience designed
to secure a more orderly regulation of the affairs of society.
In "mala in se", the acts constituting the crimes are inherently evil, bad
or wrong, and hence involves the moral traits of the offender; while in
"mala prohibita", the acts constituting the crimes are not inherently bad,
evil or wrong but prohibited and made punishable only for public good. And
because the moral trait of the offender is involved in "mala in se".
Modifying circumstances, the offender's extent of participation in the crime,
and the degree of accomplishment of the crime are taken into account in
imposing the penalty: these are not so in "mala prohibita" where criminal
liability arises only when the acts are consummated.
In crimes mala in se, good faith or lack of criminal intent/ negligence is a

defense, while in crimes mala prohibita, good faith or lack of criminal
intent or malice is not a defense; it is enough that the prohibition was
voluntarily violated.
Also, criminal liability is generally incurred in crimes mala in se even when the
crime is only attempted or frustrated, while
in
crimes
mala
prohibita,
criminal liability is generally incurred only when the crime is consummated.
Also in crimes mala in se, mitigating and aggravating circumstances are

appreciated in imposing the penalties, while in crimes mala prohibita, such
circumstances are not appreciated unless the special law has adopted the
scheme or scale of penalties under the Revised Penal Code.
4. May an act be malum in se and be, at the same time, malum prohibitum?
Yes, an act may be malum in se and malum prohibitum at the same time. In
People v. Sunico, et aL. (CA 50 OG 5880) it was held that the omission or
failure of election inspectors and poll clerks to include a voter's name in the list
of voters is wrong per se because it disenfranchises a voter of his right
to vote. In this regard it is considered as malum in se. Since it is punished under
a special law (Sec. 101 and 103, Revised Election Code), it is considered malum
prohibitum.
5. May an act be malum in se and be, at the same time, malum prohibitum?
Yes, an act may be malum in se and malum prohibitum at the same time. In
People v. Sunico, et aL. (CA 50 OG 5880) it was held that the omission or
failure of election inspectors and poll clerks to include a voter's name in the list
of voters is wrong per se because it disenfranchises a voter of his right
to vote. In this regard it is considered as malum in se. Since it is punished under
a special law (Sec. 101 and 103, Revised Election Code), it is considered malum
prohibitum
6.
went
Mr. Carlos Gabisi, a customs guard, and Mr. Rico Yto, a private Individual,
to the office of Mr. Diether Ocuarto, a customs broker, and
represented themselves as agents of Moonglow Commercial Trading, an

Importer of children's clothes and toys. Mr. Gabisi and Mr. Yto engaged Mr.
Ocuarto to prepare and file with the Bureau of Customs the necessary Import
Entry and Internal Revenue Declaration covering Moonglow's shipment. Mr.
Gabisi and Mr. Yto submitted to Mr. Ocuarto a packing list, a commercial
invoice, a bill of lading and a Sworn Import Duty Declaration which
declared the shipment as children's toys, the taxes and duties of which
were computed at P60,000.00. Mr. Ocuarto filed the aforementioned
documents with the Manila International Container Port. However, before
the shipment was released, a spot check was conducted by
Customs
Senior Agent James Bandido, who discovered that the contents of the van
(shipment) were not children's toys as declared in the shipping documents but
1,000 units of video cassette recorders with taxes and duties computed at
P600,000.00. A hold order and warrant of seizure and detention were then
issued by the District Collector of Customs. Further investigation showed
that Moonglow is non-existent. Consequently, Mr. Gabisi and Mr. Yto were
charged with and convicted for violation of Section 3(e) of R.A. 3019 which makes
it unlawful among others, for public officers to cause any undue Injury to
any party, including the Government. In the discharge of official functions
through manifest partiality, evident bad faith or gross inexcusable
negligence. In their motion for reconsideration, the accused alleged that
the decision was erroneous because the crime was not consummated but
was only at an attempted stage, and that in fact the Government did not suffer
any undue injury.
a) Is the contention of both accused correct? Explain?

Yes, the contention of the accused that the crime was not consummated
is
correct, RA. 3019 is a special law punishing acts mala prohibita. As a
rule, attempted a special law is not punished. Actual injury is required.
7.
Which of the following is a crime malum in se?

a.
Offenses punished by the Revised Election Code, a special law, for

the omission or failure to include a voters name in the in the
registry list of voters.
b. Illegal possession of firearms
c. Violation of BP 22 for issuing a bouncing check
d. Offenses defined and punished by the Revised Penal Code.
e. Carnapping Law
f. Dangerous Drugs Law
8.
In crimes mala prohibita, the criminal liability of the offender is determined

by his:
a.
b.
c.
d.
criminal intent
intent to perpetrate the act
negligence, lack of foresight, lack of skill
ignorance of the law
e.
9.
mistake of fact
Crimes mala prohibita are:
a.
b.
c.
d.
e.
Generally embodied in the Revised Penal Code

Punishable with life imprisonment and never with reclusion perpetua
Always wrong acts hence should be penalized
Generally not required to be attended by malice and evil intent
Heinous crimes

Mala in Se and Mala Prohibita

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SPECIAL PENAL LAWS

MALA IN SE AND MALA PROHIBITA

As to moral trait of the offender

As to use of good faith as defense

As to degree of accomplishment of the crime

In crimes punished under the Revised Penal Code, the degree of

As to mitigating and aggravating circumstances

In crimes punished under the Revised Penal Code, mitigating and

Distinguish between crimes mala in se and crimes mala prohibita.

In crimes mala in se, good faith or lack of criminal intent/ negligence is a

Also in crimes mala in se, mitigating and aggravating circumstances are

represented themselves as agents of Moonglow Commercial Trading, an

a) Is the contention of both accused correct? Explain?

Which of the following is a crime malum in se?

Offenses punished by the Revised Election Code, a special law, for

In crimes mala prohibita, the criminal liability of the offender is determined

Generally embodied in the Revised Penal Code

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