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I. Foreword, p. 483
II. The Case Under Annotation, p. 484
III. Crimes Mala In Se and Mala Prohibita, p. 486


I. Foreword

For sometime now, we have not come across decisions of the Highest
Court of the land which dispose of a case on the basis of the deeper
seated theory of philosophy of the law. By the more recent adjudications
of the Supreme Court, legal philosophy had been relegated to the
background in favor of the narrower theories of stare decisis and malum
For those who are inclined to legal philosophy, it is encouraging to
note that eight (8) days before retiring from the judiciary, Mr. Justice
Edgardo L. Paras penned a decision showing his deep insight into legal
philosophy, and used the same as guiding principle in holding that an
apparent violation of Batas Pambansa Blg. 22 was not in fact so, blasting
the much reviled theory of malum prohibitum. We are referring to the
case of Magno v. Court of Appeals, et al., decided on 26 June 1992.


* Judge, Regional Trial Court, National Capital Judicial Region, Manila.

1 Mr. Justice Paras retired from the Supreme Court on 4 July 1992.
2 G.R. No. 96132, June 26, 1992.



A Theory of Crime and Punishment

What is saddening though is that with the retirement of Justice Paras,

the justice system had lost the services of his wise and mature 1/6
jurisprudential wisdom, so much needed at this crucial stage of the
development of our jurisprudence.

II. The Case Under Annotation

After characterizing the transaction which gave rise to the issuance of

the checks involved in the case as shrouded with mystery, gimmickry
and doubtful legality, victimizing unsuspecting businessmen, who
likewise need protection from the law and lamenting that with a
willing court system to apply the full harshness of the special law in
question, using the mala prohibita doctrine, Justice Paras wrote in his
decision as follows:

For all intents and purposes, the law was devised to safeguard the interest of
the banking system and the legitimate public checking account user. It did not
intend to shelter or favor nor encourage users of the system to enrich themselves
through manipulations and circumvention of the noble purpose and objective of
the law. Least should it be used also as a means of jeopardizing honestto
goodness transactions with some color of getrich scheme to the prejudice of
wellmeaning businessmen who are the pillars of society.
Under the utilitarian theory, the protective theory in criminal law, affirms
that the primary function of punishment is the protecti(on) . . . of society against
actual and potential wrongdoers. x x x
Corollary to the above view, is the application of the theory that criminal law
is founded upon that moral disapprobation x x x of actions which are immoral,
i.e., which are detrimental (or dangerous) to those conditions upon which depend
the existence and progress of human society. This disapprobation is inevitable to
the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. x x x That which we call punishment is


3 Utilitarianism is one of the schools of jurisprudence which espouses the doctrine

that what is useful is good and that the determining consideration of right conduct is
the usefulness of its consequences on the greatest happiness of the greatest number in
the community. This, to the utilitarian, is the purpose and end of the law. (See
Pascual, Introduction To Legal Philosophy, 1989 ed., p. 137.)


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an external means of emphasizing moral disapprobation; the method of

punishment is in reality the amount of punishment. x x x
Thus, it behooves upon a court of law that in applying the punishment
imposed upon the accused, the objective of retribution of a wronged society,
should be directed against the actual and potential wrongdoers. In the instant
case, there is no doubt that petitioners four (4) checks were used to collateralize
an accommodation, and not to cover the receipt of an actual account or credit for
value as this was absent, and therefore petitioner should not be punished for
mere issuance of the checks in question. Following the aforecited theory, in
petitioners stead the potential wrongdoer, whose operation could be a menace to
society, should not be glorified by convicting the petitioner. (Italics supplied.)

Clearly, the foregoing pronouncements went into the theory of crime and
punishment in their jurisprudential concepts, which were used by the 2/6

ponente as the guiding principle in determining whether the penal

provisions of B.P. 22 must be imposed.
It must be mentioned in this connection, that eight (8) days before the
promulgation of the Magno decision, Justice Paras also penned for the
High Court an en banc decision, stating as follows:

Undeniably, the offense of illegal possession of firearms is malum prohibitum

but it does not follow that the subject thereof is necessarily illegal per se. Motive
is immaterial in mala prohibita but the subjects of this kind of offense may not
be summarily seized simply because they are prohibited. A search warrant is still
necessary. Hence, the rule having been violated and no exception being
applicable, the articles seized were confiscated illegally and are therefore
protected by the exclusionary principle. They cannot be used as evidence against
the petitioners in the criminal action against them for illegal possession of
firearms. (Roan v. Gonzales, 145 SCRA 689690 [1986]). Besides, assuming that
there was indeed a search warrant, still in mala prohibita, while there is no need
of criminal intent, there must be knowledge that the same existed. Without the
knowledge of voluntariness there is no crime.


4 Sps. Veroy v. Layague, etc., et al., G.R. No. 95630, June 18, 1992, 210 SCRA 97.



A Theory of Crime and Punishment

Thus, the much abused theory of malum prohibitumthat the only point
of inquiry in this kind of offense is, whether the law has been violated
was already clearly relegated to the background in favor of the
teleological idea of fairness and justice.
It must be recalled that in the en banc decision of the Supreme Court
in Lozano v. Martinez and its companion cases, the theory of malum
prohibitum was used to justify application of the punitive provisions of
B.P. 22, without regard to the circumstance of whether the check was
postdated (which is no different from a promissory note) or not, and
without looking into the nature of the transaction which gave rise to the
issuance of the check. Said case also enunciated the theory that the mere
act of issuing a bad check constitutes the crime itself (inspite of the clear
provision of the law that the check has to be dishonored and the drawer
given five banking days to make good the amount of the check after
notice of dishonor before indictment can be made). The Lozano doctrine
was indeed a haphazard ruling and its effect is a perversion of the
criminal process, because payees of dishonored checks are using the
threat of criminal sanction to enforce collections of their credits. About
thirty percent (30%) of the dockets of the courts in the metropolitan areas
are B.P. 22related cases, and what is worse, when several checks are
issued out of a single transaction, each check is the subject of a separate
indictment, so that the law, as interpreted, is spawning the clogging of
court dockets. This could not have been envisioned by the legislature in
enacting B.P. 22.

III. Crimes Mala In Se and Mala Prohibita

These classes of crimes are recognized in the second and third

paragraphs, Article 3 of the Revised Penal Code, which provide: 3/6
Felonies are committed not only by deceit (dolo) but also by means of fault


5 146 SCRA 323. The writer was one of the respondents in said cases because he
declared B.P. 22 unconstitutional.


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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.

Crimes mala in se are unlawful facts accompanied by evil intent. The

Code calls these crimes dolo offenses. This class of crimes is based on the
general condition of penal liability under the legal maxim, actus non facit
reum, nisi mens sit rea, or the mens rea doctrine, under which the
unlawful act alone does not amount to guilt unless it is accompanied by a
guilty mind. The principle is stated in the above latin maxim, which, if
freely translated, means that an act is not criminal unless the mind is
Offenses mala in se require malice or malicious intention. The term
dolus, as an element of the mode of commission of this class of offenses,
involves a complex idea, which consists of several elements: freedom,
intelligence, and intent. The violation must be a voluntary act, otherwise
it will not amount to a crime, or stating it in another way, no criminal
liability is incurred. Thus, an insane person is exempt from criminal
liability because he is said to be acting involuntarily. So also is a person
acting under the compulsion of an irresistible force or under the impulse
of an uncontrollable fear, exempt from criminal liability.
Justice Albert said that when an act is performed without freedom,
there can never be a crime, however great the damage caused. There
would be a misfortune to regret and, if possible, to repair; but not a crime
to repress. To act without deliberation, without power to choose between
two things; in a word, it is to act from necessity. Placed in this situation,
a man is no longer a human being but a tool; his liability is as much that
of the knife that wounds, or of the torch that sets fire, or of the key that
opens a good, or of the ladder that is placed against the wall of a house in
committing robbery. He who thus acts, coerced by a physical force, is not
a criminal in the contemplation of the public conscience; should the law
declare him to be such, the peoples sense of fairness would revolt against


6 Art. 12, Rev. Penal Code.

7 The Revised Penal Code, Annotated, 1948 ed., p. 22.



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Without intelligence, necessary to determine the morality of human acts,
to distinguish a licit from an illicit act, no crime can exist, and because
the imbecile, the lunatic, and the infant have no intelligence, the law
exempts them from criminal liability.
Intentwhen there is no will there is no crime. He who is unwilling to
do a certain act and is compelled to do it by an irresistible force, whether
physical or moral, commits no crime. This is obvious. Where there is no
intelligence there is no will. An imbecile, a lunatic, a child, whatever the
damage they may cause, are exempt from criminal liability.
There are crimes which, by the act alone, irrespective of its motives,
constitutes the offense punished by the statute. These are the crimes
mala prohibita, where in determining the existence of the crime, the only
inquiry is, has the law been violated? Whether or not in a given case a
statute is to be so construed is to be determined by the subject matter of
the prohibition, as well as the language of the statute and the intention
of the legislature.
The traditional concept of offense malum prohibitum is that the act is
evil because it is prohibited. An offense malum prohibitum is an act
made wrong by legislationa forbidden evil. A wrong prohibited; a thing
which is wrong because prohibited; an act which is not inherently
immoral but becomes so because its commission is expressly forbidden by
positive law; an act involving an illegality resulting from positive law.
An offense not such of itself but because prohibited by statute. An
illegal act because of the prohibition of the law.
In crimes mala in se, the intent governs but in those mala prohibita,
the only inquiry is, has the law been violated? An offense malum
prohibitum is a type of crime wherein the intention of the person who
commits it is entirely immaterial.


8 Albert, op. cit., p. 24.

9 Albert, op. cit., p. 24.
10 U.S. v. Look Chaw, 19 Phil. 349.
11 People v. Sunico [CA], 50 O.G. 5883.
12 People v. Alonzo, CAG.R. No. 07578CR, May 7, 1970.
13 People v. Blance, CAG.R. No. 2335R, Dec. 4, 1948.
14 U.S. v. Go Chico, 14 Phil. 134.
15 People v. Romas, CAG.R. No. 14742CR, Feb. 2, 1978.


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Crimes mala in se are acts morally wrong; offeneses against

conscience, whereas, crimes mala prohibita are those acts which are
prohibited by law, and therefore unlawful, or crimes, made such, only by
reason of statutory prohibition.
With the two (2) latest rulings above mentioned, the traditional
concept of offenses mala prohibita had been exploded. Knowledge of the
prohibition is now a requirement, so that in charging an offense malum
prohibitum the information must now state not merely unlawfulness of
the act but also that it was done knowingly or willfully, otherwise the
information is insufficient to charge an offense. This must be so because
the Constitution requires that the accused enjoys the right to be
informed of the cause of the accusation against him. 5/6


16 1 Black Commentaries, 57, 58; 4, Id., 8.

17 1 McClain, Cr. L., sec. 23.


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