Mala in Se versus Mala Prohibita

(Philippine Criminal Law)

by

GhostPreacher

Etymologically, Mala in Se are acts or omissions which are wrong or evil in its very nature. On the other hand,
Mala Prohibita are acts or omissions that are not wrong or evil in essence, but they are wrong or evil because
they are prohibited.

From a legal point of view, and as far as Philippine Criminal Law is concerned, all crimes punished under the
Revised Penal Code, and any amendments thereto through Special Penal Laws, are considered Mala in Se. As
such, they are called Felonies. Examples of them are Adultery, Concubinage, and Prohibited Drugs.

Crimes punished by Special Penal Laws, standing alone, are considered as Mala Prohibita. An example of such
is Illegal Possession of Firearms. As such, they are called Offenses. However, not all Special Penal Laws are
considered Mala Prohibita. There are certain Special Penal Laws that punishes offenses that are considered
Mala in Se (i.e. Terrorism, Genocide, Torture).

The importance of the above distinction is for judges to be able to determine if the element of intent is
necessary to convict the accused. Consequently, it is also important to determine if good faith is a proper
defense for the accused.

Otherwise stated:

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.

Garcia vs. CA and People; GR 157171; March 14, 2006

N. EX POST FACTO LAWS AND BILL OF ATTAINDER

Section 22, Art. III. No ex post facto law or bill of attainder shall be
enacted.
Kinds of Ex Post Facto Laws
(1) One which makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action.
(2) One which aggravates the crime or makes it greater than when it was
committed.
(3) One which changes the punishment and inflicts a greater punishment than that
which the law annexed to the crime when it was committed.
(4) One which alters the legal rules of evidence and receives less testimony than
the law required at the time of the commission of the offense in order to convict the
accused.
(5) One which assumes to regulate civil rights and remedies only BUT, in effect,
imposes a penalty or deprivation of a right, which, when done, was lawful.
(6) One which deprives a person accused of a crime of some lawful protection to
which he has become entitled such as the protection of a former conviction or
acquittal, or a proclamation of amnesty. (In Re Kay Villegas Kami)
Characteristics of Ex Post Facto Law
(a) Must refer to criminal matters
(b) Prejudicial to the accused
(c) Retroactive in application

In Lacson v. Exec. Sec., the Court held that in general, ex post facto law
prohibits retrospectivity of penal laws. RA No. 8249 is not a penal law.... The
contention that the new law diluted their right to a two-tiered appeal is incorrect
because the right to appeal is not a natural right but statutory in nature that can
be regulated by law. RA 8249 pertains only to matters of procedure, and being
merely an amendatory statute it does not partake the nature of ex post facto law.

In Calder v. Bull, the Court said that when the law alters the legal rules of
evidence or mode of trial, it is an ex post facto law. Exception: (Beazell v.
Ohio) unless the changes operate only in limited and unsubstantial manner to the
disadvantage of the accused.

In Bayot v. Sandiganbayan, the accused was convicted by the

Sandiganbayan for estafa on May 30, 1980. Accused appealed. On March 16, 1982,
BP Blg. 195 was passed authorizing suspension of public officers against whom an
information may be pending at any stage. On July 22, 1982, the court suspended

the accused. The Supreme Court ruled that Art. 24 of the Revised Penal Code that
suspension of an officer during trial shall not be considered a penalty. The
suspension in the case is merely a preventive and not a penal measure which
therefore does not come under the ex post facto prohibition.
BILL OF ATTAINDER
Bill of attainder is a legislative act which inflicts punishment without judicial
trial. If the punishment be less than death, the act is termed a bill of pains and
penalties. (Cummings v. Missouri)
(All Bills of Attainder are Ex Post Facto Laws)
Elements of Bill of Attainder
1.
There must be a law.
2.
The law imposes a penal burden on a named individual or easily ascertainable
members of a group.
3.
There is a direct imposition of penal burden without judicial trial.