Mala in se, mala prohibita – Criminal Law

1. Concepts

“Mala in se” – refers to acts wrong in themselves. (Dungo v. People, G.R. No. 209464, 01 July 2015)

“Mala prohibita” – refers to acts which would not be wrong but for the fact that positive law forbids them. (Ibid.)

2. Importance of the difference

The law has long divided crimes into acts wrong in themselves called acts mala in se; and acts which would not be wrong but for the fact that positive law forbids them, called acts mala prohibita. This distinction is important with reference to the intent with which a wrongful act is done. (Tan v. Ballena, G.R. No. 168111, 04 July 2008)

The rule on the subject is that in acts mala in se, the intent governs; but in acts mala prohibita, the only inquiry is, has the law been violated? When an act is illegal, the intent of the offender is immaterial. When the doing of an act is prohibited by law, it is considered injurious to public welfare, and the doing of the prohibited act is the crime itself. (Dungo v. People, supra.)

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...


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