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.