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 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 v. CA, G.R. No. 157171, 14 March 2006)

3. Misconceptions

A common misconception is that all mala in se crimes are found in the Revised Penal Code (RPC), while all mala prohibita crimes are provided by special penal laws. In reality, however, there may be mala in se crimes under special laws, such as plunder under R.A. No. 7080, as amended. Similarly, there may be mala prohibita crimes defined in the RPC, such as technical malversation. (Dungo v. People, supra.)

The better approach to distinguish between mala in se and mala prohibita crimes is the determination of the inherent immorality or vileness of the penalized act. If the punishable act or omission is immoral in itself, then it is a crime mala in se, on the contrary, if it is not immoral in itself, but there is a statute prohibiting its commission for reasons of public policy, then it is mala prohibita. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. (Ibid.)

4. Legislative intent

Whether or not in a given case the statute is to be construed as forbidding the doing of an act and criminalizing the same without regard to the intent of the perpetrator of the act, is to be determined by the court by considering the subject matter of the prohibition as well as the language of the statute, thereby ascertaining the intention of the lawmaker. The index of whether or not a crime is malum prohibitum is not its form, that is, whether or not it is found in the Revised Penal Code or in a special penal statute, but the legislative intent that underlies its continuing existence as part of the law of the land. (People v. Quijada, En Banc, G.R. Nos. 115008-09, 24 July 1996)


Jurisprudence (Case Law)

1) In Dungo v. People, the crime of hazing under R.A. No. 8049 is malum prohibitum. The act of hazing itself is not inherently immoral, but the law deems the same to be against public policy and must be prohibited. Accordingly, the existence of criminal intent is immaterial in the crime of hazing. Also, the defense of good faith cannot be raised in its prosecution. (Supra.)

2) In People v. Quijada, murder and homicide are defined and penalized by the Revised Penal Code as crimes against persons. They are mala in se because malice or dolo is a necessary ingredient therefor. On the other hand, the offense of illegal possession of firearm is defined and punished by a special penal law, 48 P.D. No. 1866. It is a malum prohibitum the act is so condemned not only because of its nature but also because of the larger policy consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition, and explosives. (Supra.)


⦁ Book I, Act No. 3815, Revised Penal Code

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