Mala Prohibita Vs Mala In Se | Principles of Criminal Law
  • Home
  • /
  • Blog
  • /
  • Mala Prohibita Vs Mala In Se | Principles of Criminal Law

Mala Prohibita vs Mala In Se

We will gloss over the fundamental distinctions between crimes with mens rea and offenses having only an intent to perpetuate the act [mala prohibita vs mala in se] in this discussion. We shall, as well in a nutshell, pry on the basic definition of criminal law and of the crime itself, in addition to the interplay of the territorial jurisdiction, affected by generality, territoriality, and non-retroactivity.

The Criminal Law System of the Philippines was chiefly patterned from the Spanish Penal Code since 1870s. Since then it has evolved through time as the persuasive effect of the American criminal law, our customary laws and traditions, and Court decisions were also incorporated into our Criminal Law.

What is Criminal Law? What is a Crime?

The late Justice Jose Luis Reyes defined Criminal Law in his book, The Revised Penal Code Book I, as that branch or division of law which defines crimes, treats of their nature, and provides for the their punishment, while he defined crime as an act committed or omitted in violation of public law forbidding or commanding it.

The Main Sources of our Criminal Laws now are the Revised Penal Code Republic Act No. 3815, Special Penal Laws, and the city and municipal ordinances providing for penal sanctions.

Consequently, Felonies are crimes in violation of the Revised Penal Code while offenses are crimes in violation of the Special Penal Laws and infractions for violation of ordinances.

Our Constitution has characterized our Criminal Law system as it provided for its applicability and limitations which became the basic principles of our criminal law, some of which are:


The statutes must apply to all persons within the country, whether they reside or sojourn or are merely transients, regardless of nationality, color, sex, age, social position, and other personal circumstances, except as provided (a) in public international law, (b) treaty stipulations, and (c) laws of preferential application.1


It applies only to crimes committed within the territorial jurisdiction of the country, except those against who:2

  1. Should commit an offense while on a Philippine ship or airship,3
  2. Should forge or counterfeit any coin or currency of the Philippines or obligation and securities issued by the government of the Philippines,4
  3. Should be liable for acts connected with the introduction into the country of the obligations and securities afore stated,5
  4. While being public officers or employees, should commit an offense in the exercise of their functions,6
  5. Should commit any of the crimes against the national security and the law of nations, e.g., Treason, Espionage, Piracy.7

Irretrospectivity or Prospectivity

Also, in line with the general principles of international law, and as specifically provided for in the Revised Penal Code, our Criminal Law should be prospective in its applications. The Philippines subscribes to the non-retroactivity of the criminal laws. The law does not have any retroactive effect, except if it favors the offender or unless the law otherwise provides.

Mala Prohibita

Mala prohibita, or malum prohibitum in its singular form, is a Latin phrase which literally translates to, it is wrong as, or because, it is prohibited.

These are acts or  omissions which are not inherently wrongful or immoral by themselves; yet, because of certain statutes or laws prohibiting such acts or omission, they have been considered as crimes or offenses. Hence, they become punishable under such laws.

The act becomes a crime because a criminal statute made it so. Usually, mala prohibita are crimes or offenses which do not harm people and property. They may also include breaches of statutes or prohibitions involving minor crimes, such as but not limited to infractions of ordinances.

Therefore, the only question in determining whether or not the same is malum prohibitum is whether a statute or a special penal law is violated.

Why will, then, such statutes or prohibitions have been enacted to criminalize those acts or omissions if they are not inherently wrongful or immoral?

It must be noted that the primary feature of crimes mala prohibita is not their lack of gravity. Nonetheless, they are acts criminalized by statute in an effort to regulate the general behaviors of society.

Perforce, the main objective of the state is to instill order in the society. Necessarily, it is apt to regulate such acts or omissions which if remained unattended may subsequently cause chaos to the communities in general. Then, a greater harm will be unavoidable.

Such acts, like illegally possessing firearms, if remained unregulated or prohibited will result into proliferation of unlicensed guns in the hands of our citizens. It will eventually cause harm to our society, as the privilege of owning a gun will no longer be conditioned by responsible ownership, strict terms, and conditions.

Mala In Se

Mala in se, or malum in se, in its singular form is a Latin phrase which literally translates to wrong in, and of, itself. These are acts or omissions, in contrast with mala prohibita, which do not need special criminal statutes to criminalize those acts or omission simply by violating such special laws.

In mala in se, the acts or omissions itself are inherently wrongful and immoral. These are acts which our society, our traditions, and our parents consider as naturally and organically evil.

Thus, they are acts and omissions which are wrong because they violate the moral, natural, or public principles of our society.

The perpetrated action itself is per se sinister or evil. The list of these evil crimes are found and codified in our Revised Penal Code, with the corresponding punishment like penalty of imprisonment and fines, capital, afflictive, correctional, light, or otherwise.

Crimes like murder, rape, and kidnapping and others are intrinsically evil, regardless of the regulations governing the conduct.

It is the very nature of the acts themselves which attacks and violates the very moral, natural, or public principles of our society that make them punishable offenses.

It is the severity of the acts and omissions that the state wants to prevent, eliminate, and eradicate, with the concomitant objective to rehabilitate the perpetrators by penalizing them with corresponding imprisonment and/or fines, as the case may be.

What Is The Difference Between Mala Prohibita And Mala In Se?

As discussed previously, mala prohibita are acts and omissions which are made crimes because special statutes criminalize it.

Mala in se, on the other hand, are acts and omissions which are inherently wrongful and immoral regardless of regulations governing their conduct.

In mala in se, intent to commit the crime is an element thereof. The criminal intent must unite with the unlawful act for it to constitute as felony.

In mala prohibita, criminal intent is not an essential element of the offense. It is enough that an act or omission has violated a special statute prohibiting such act or omission.

In mala in se, it presupposes that the person doing the crime has the criminal intent to do it. When a person murders another, it must be proven that it was his intention to kill that individual in order for it to constitute as murder. Intent governs the crime.

In mala prohibita, it is enough that a statute or law is violated. The intent here is not mens rea [criminal intent] but only the desire or intent to perpetrate the act.

Are There Similarities Between Mala In Se And Mala Prohibita?

The similarity between Mala in se and Mala prohibita is that the acts covered under both categories are a violation of a law. We must still remember the principle that there is no crime if there will be no law that will penalize the same. In that sense, they are similar.

The similarity may have ended there considering that both principles are separated by mens rea or criminal intent. Again, Mala in se and Mala Prohibita are acts  or  omissions  punishable  by  law.8

Mala  in  se  are  those  acts  that  are inherently evil or wrongful in itself while Mala prohibita are acts that are not inherently evil or wrong, they are only wrong because those acts were prohibited or punishable by law.

In mala in se, the prosecution must prove the evil intent of the offender to commit a crime. Whereas in mala prohibita, the prosecution must prove the intent to perpetrate the act, that the offender did intend to commit the same, and said act is prohibited by law, therefore, a crime itself.

Acts mala prohibita are only wrong because there is a law that defines and punishes those actions. Without the said law, the same will not be considered a crime.

One instance, as mentioned above, is the illegal possession of firearm. Mere possession is not criminal in nature but possession of firearms without license and without permit to carry is considered criminal and illegal because there is a law, PD 1866 as amended by R.A. 9284 and further amended by R.A. 10591 which prohibits the possession and carrying of firearms without license and permit to carry.

Acts mala in se are acts which are inherently evil or wrong by their very nature. It is wrong per se, even if there’s no law, it is evil. Although wrong themselves, they may not be punishable if there are no laws punishing the same [nullum crimen nullum poena sine lege], unless in some other common law jurisdictions

Is Good Faith A Defense In Mala In Se?

Good faith is a valid defense in mala in se. As defined above, Mala in se are those acts that are inherently evil or wrongful in itself.

Generally, good faith or lack of criminal intent [actus non facit reum nsi men sit rea] is a valid defense in mala in se, except when the crime committed incurred or resulted from criminal negligence. There is nor crime if there is no criminal intent.

In these crimes, the acts are naturally wrong, evil, or bad. They must be condemned. The moral trait of the offender is now involved and must be taken into consideration. In crimes mala in se, criminal liability is generally incurred even when the crime committed is only attempted and frustrated.

Is Good Faith A Defense In Mala Prohibita?

Good faith is not a defense in mala prohibita. As defined above, crimes mala prohibita are considered wrong only because they are prohibited by law or statue.

These acts constitute violations of a law or statute designed to promote and protect the general welfare of the people. In these crimes, the acts committed are not by nature wrong, evil, or bad.

They are being punished only because there is a law prohibiting them for public good, public welfare or interest; and thus, good faith or lack of criminal intent is not a valid defense.

Does Mala Prohibita Require Motive?

Mala Prohibita does not require motive. At the risk of being repetitive, those are acts are not evil or wrong per se. They are only wrong because those acts or omissions are prohibited and punishable by law.

In this type of crime, the motive or intent is not that much important since it is sufficient that a special law has been breached.

For instance, If a person was arrested for violating an ordinance which implements liquor ban, it is not required to know what is his intention or motive for disregarding the liquor ban.

It is sufficient that he has transgressed the law which prohibited, regardless of his motive or intent, the possession of liquor.

In these crimes, no criminal intent is needed for the offender to be held liable for the commission of an offense. Unlike in the crime mala in se, wherein good faith or lack of criminal intent is a valid defense.

In offenses mala prohibita, the forbidden acts might not be inherently immoral; yet, still, they are penalized because the law says they are unlawful.

What is mens rea?

Actus reus and mens rea are two terms which usually make up a crime. Actus reus is the criminal act, while mens rea is the criminal intention.

Mens Rea is a latin word which means “guilty mind”.9 This usually refers to the criminal intent of a person to commit a crime, such as his or her conscious planning in committing the same.

Examples of these are:

  • Intent to kill
  • Intent to gain
  • Lewd design
  • Intent to have carnal knowledge

It also includes one’s knowledge that his or her action or lack of action would constitute a crime. Mens rea is necessary to prove the guilt of the accused and to convict him or her.

It is actually based on the premise that the accused, at the time of the commission of the crime, was aware of his or her misconduct, but need not know that such act conduct is legally, and that it would constitute a crime punishable by law.

How do You Distinguish Mens Rea from Intent to Perpetrate an Act?

Mens Rea is the knowledge of the wrongdoing that constitutes a crime, while intent is the determination that motivates a person to commit a crime.

Basically, intent is deemed present in a mens rea. This is because when a person has the intent to commit a crime, such person has the knowledge that such wrongdoing will constitute a crime.

On the other hand, intent to perpetrate the act is the voluntary commission of certain actions or even omissions, as the case may be. These actions are not necessarily unlawful per se, yet, the law may penalize the same.

Consequently, in having the intention to perpetrate an act, while being done voluntarily, he or she does not have any criminal intention or what we call mens rea.

Do We Have Mala In Prohibita Offenses Under The Revised Penal Code?

It is wise to point out again that Mala prohibita is a Latin phrase which means ”wrong because it is prohibited.’’ Simply put, these are acts that are not actually wrong but they are considered as such because there is a law or a statute that prohibits the people from doing the same.

These acts are made unlawful or punishable on the basis of an existing law which provides for their punishment. These acts do not require proof of criminal intent.

This means that it is sufficient that the offender commit such act and violate the law prohibiting such. Good faith or lack of criminal intent is also not a defense, unless intent is an element of the crime.

While all felonies in the Revised Penal Code are generally [and unavoidably at that] considered mala in se, still there are offenses therein that are not crime per se or otherwise labeled as mala prohibita.

An instance in the Revised Penal Code of this is the crime of Illegal Use of Public Fund under Article 220 or popularly known as Technical Malversation.

Instances Of Mala Prohibita Felony Under The Revised Penal Code And Explain Why It Is, Or Why They Are, Mala Prohibita?

As mentioned, all felonies in the Revised Penal Code are considered mala in se. However, the crime of Illegal Use of Public Fund, which is under Article 220 of the Revised Penal Code is considered a mala prohibita.

In the case of Ysidoro vs. People of the Philippines,10 the Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the Sandiganbayan in Criminal Case 28228 of violation of illegal use of public property (technical malversation) under Article 220 of the Revised Penal Code.

Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the CSAP beneficiaries came, not from him, but from Garcia and Polinio; and, second, he consulted the accounting department if the goods could be distributed to those beneficiaries. Having no criminal intent, he argues that he cannot be convicted of the crime.11

However, the Supreme Court held that criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or ordinance for a particular public purpose to another public purpose.12

The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of public policy, order, and convenience.13

It is the commission of an act as defined by the law, and not the character or effect thereof, that determines whether or not the provision has been violated.14

Hence, malice or criminal intent is completely irrelevant. Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes the crime of technical malversation.15

Is Plunder a Mala Prohibita or Mala In Se Crime?

In Dungo vs. People of the Philippines16, the Supreme Court is clear in saying that in determining whether a crime is a mala in se or mala prohibita, it is important to determine whether the crime is inherently immoral or vile. In such a case, it is a mala in se crime regardless if it is punishable under a special law.

To quote the Supreme Court in its landmark decision in Estrada vs. Sandignabayan:17

“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.”18

In this regard, it is clear that Plunder, albeit punishable under a Special Penal Law, is a mala in se crime.

Are Violations of RA 3019 Mala Prohibita Offense or Mala In Se Crimes?

In Zari vs. Flores19 (A.M. No. (2170-MC) P-1356), the Supreme Court pronounced that crimes mala in se involve moral turpitude, while crimes mala prohibita do not. To quote the Supreme Court in the said case:

“It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited.”20

However, this yardstick set by the Zari case was proven to be inefficient in giving clear cut distinction between a mala in se and a mala prohibita crime, as declared in IRRI vs. NLRC.21

Moral turpitude has been defined in Can v. Galing, citing In Re Basa and Tak Ng v. Republic as everything which is done contrary to justice, modesty, or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general, contrary to justice, honesty, modesty or good morals.22

x x x x . . . .

While . . . generally but not always, crimes mala in se involve moral turpitude, while crimes mala prohibita do not, it, cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, since there are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. It follows therefore, that moral turpitude is somewhat a vague and indefinite term, the meaning of which must be left to the process of judicial inclusion or exclusion as the cases are reached.23

In recent jurisprudence, however, it was laid down that if the crime is inherently immoral it shall be categorized as a mala in se crime, as discussed above.

In this regard, in the absence of direct jurisprudential doctrine that violation of RA 3019, it will depend upon the circumstances of each case as regards specific violations of the law, whether the same will be mala prohibita or mala in se acts or omissions.

In any case, we will be guided by the above cases in determining the applicability of such principles of criminal law.


It is very important for law students, or even law practitioners to have mastery of fundamental principles of criminal law. Legal practice in criminal law not only involves application of different branches of law, such as, remedial, civil, or political law. It also demands for a lot of attention and focus to some other related principles and jurisprudence.

In criminal law, one thing is for sure, every detail involving the crime itself, or the commission thereof, may change the course of the case. Those details may save or convict a person. Indeed, it is the branch of law which has significant implications in people’s lives.

Mastery of basic principles of good faith vs bad faith, mala prohibita vs mala in se, and mens rea vs intent to perpetrate an act seems inconsequential sometimes, especially when put into a larger scheme of things. Yet, when it matters most, it may save your client’s life.

  1. Criminal Law Conspectus, J. Regalado, 2000, pp. 4-8[]
  2. Act No. 3815, The Revised Penal Code of the Philippines[]
  3. Article 2, Id.[]
  4. Id.[]
  5. Id.[]
  6. Id.[]
  7. Id.[]
  8. What is a Special Law | Specific Law for certain Offenses[]
  9. Mens Rea[]
  10. G.R. No. 192330, November  14, 2012[]
  11. Ibid.[]
  12. Ibid.[]
  13. Ibid.[]
  14. Ibid.[]
  15. Ibid.[]
  16. G.R. No. 209464, July 1, 2015[]
  17. G.R. No. 148560, November 19, 2001[]
  18. Ibid.[]
  19. A.M. No. (2170-MC) P-1356. November 21, 1979[]
  20. Ibid.[]
  21. G.R. No. 97239, May 12, 1993[]
  22. Ibid.[]
  23. Ibid.[]

RALB Law | RABR & Associates Law Firm

Leave a Reply

Your email address will not be published. Required fields are marked

{"email":"Email address invalid","url":"Website address invalid","required":"Required field missing"}

You cannot copy content of this page