Moving Forward from the Historically Incongruous Treatment of Mens Rea in Philippine

Allan Chester B. Nadate*

INTRODUCTION ...... 90 I. THE CONTEMPORARY ARTICULATION OF THE “MALA DICHOTOMY” .. 94 A. Characterizing the Dichotomy ...... 94 B. The Jurisprudential History of the “Mala Dichotomy” ...... 103 1. The Evolution of Case Law from Go Chico...... 104 2. The Misconception as Contained in Criminal Law Commentaries ...... 112 II. THE INCONGRUOUS TREATMENT OF MENS REA ...... 116 A. The Inconsistency in Code-Special Law Interpretation...... 117 B. Overcriminalization from an Overzealous Reading? ...... 124 III. THE RATIONAL APPROACH TO MENS REA INTERPRETATION ...... 131 A. Reclaiming the Proper Meaning of the “Mala Dichotomy” .... 132 B. A Radical Reconstruction of Case Law ...... 135 CONCLUSION...... 136

INTRODUCTION More than a century ago, a Chinese resident displayed several small medallions containing the face of the revolutionary Tagalog leader, General Emilio Aguinaldo, in his store in Manila.1 He bought these items together with a stock of goods in a public auction conducted by a court sheriff just

* The author works in human rights advocacy, specializing in the protection and promotion of the human right to the highest attainable standard of health. He received his nursing and law degrees from the University of the . The author thanks Professor Dante B. Gatmaytan for his feedback on earlier versions of the Article; Professor Rowena E.V. Daroy-Morales and Darwin P. Angeles, whose supervision in the University of the Philippines Office of Legal Aid inspired the author’s ongoing research in criminal justice reform; and M. Justin Homma, Toan Nguyen, Ian Tapu, Evan Oue, Miranda Steed, and the Board of the Asia-Pacific Law and Policy Journal for their editorial support. All views and errors in this paper are the author’s. 1 “[O]n or about the 4th day of August, 1908, in the city of Manila, the appellant Go Chico displayed in one of the windows and one of the show cases of his store, No. 89 Calle Rosario, a number of medallions, in the form of a small button, upon the faces of which were imprinted in miniature the picture of Emilio Aguinaldo, and the flag or banner or device used during the late insurrection in the Philippine Islands to designate and identify those in armed insurrection against the United States.” United States v. Go Chico, G.R. No. 4963, 14 Phil. 128, 130 (S.C., Sept. 15, 1909) (Phil.).

2019 Nadate 91 the day before.2 Being the aspiring entrepreneur that he was, he laid all of his purchases before his store window for customers to see and, hopefully, buy.3 Little did he know that displaying these medallions was illegal4 and that he would be imprisoned for at least three months and fined with what then was a staggering cost of 500 pesos for the particularly simple and seemingly innocent offense of “expos[ing], or caus[ing] or permit[ting] [them] to be exposed, to public view.”5 It turned out that these metallic curiosities contained a “flag or banner or device used during the late insurrection in the Philippine Islands to designate and identify those in the armed insurrection.”6 So while, at that time, General Aguinaldo had long been captured in Palanan, Isabela, his miniature face on the buttons, methodically laid out for the public, was enough to constitute a crime. And for this, the Court of First Instance adjudged the store owner guilty beyond reasonable doubt for the offense.7

2 “On the day previous to the one above set forth the appellant had purchased the stock of goods in said store, of which the medallions formed a part, at a public sale made under authority of the sheriff of the city of Manila.” Id. 3 “On the day in question, the 4th of August aforesaid, the appellant was arranging his stock of goods for the purpose of displaying them to the public and in so doing placed in his showcase and in one of the windows of his store the medallions described.” Id. 4 “The appellant was ignorant of the existence of a law against the display of the medallions in question and had consequently no corrupt intention.” Id. 5 “Any person who shall expose, or cause or permit to be exposed, to public view on his own premises, or who shall expose, or cause to be exposed, to public view, either on his own premises or elsewhere, any flag, banner, emblem, or device used during the late insurrection in the Philippine Islands to designate or identify those in armed rebellion against the United States, or any flag, banner, emblem, or device used or adopted at any time by the public enemies of the United States in the Philippine Island for the purpose of public disorder or of rebellion or insurrection against the authority of the United States in the Philippine Islands, or any flag, banner, emblem, or device of the Katipunan Society, or which is commonly known as such, shall be punished by a fine of not less that five hundred pesos for more than five thousand pesos, or by imprisonment for not less than three months nor more than five years, or by both such fine and imprisonment, in the discretion of the court.” An Act to Prohibit the Display of Flags, Banners, Emblems, or Devices used in the Philippine Islands for the Purpose of Rebellion or Insurrection Against the Authority of the United States and the Display of Katipunan Flags, Banners, Emblems, or Devices, and for Other Purposes, Commission Act No. 1696, § 1, (Aug. 23, 1907) (Phil.). 6 Go Chico, 14 Phil. at 130. 7 “The defendant was tried in the Court of First Instance of the city of Manila on the 8th day of September, 1908. After hearing the evidence adduced the court adjudged the defendant guilty of the crime charged and sentenced him under that judgment to pay a fine of P500, Philippine currency, and to pay the costs of the action, and to suffer subsidiary imprisonment during the time and in the form and in the place prescribed by

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Distraught at a which he saw as both unfounded and unreasonable, the Chinese resident, Go Chico, sought to appeal his conviction to the colonial Supreme Court,8 only to lose. Under the pen of Justice Sherman Moreland, Go Chico found little solace. According to the Supreme Court, his defense that he had no criminal intent in displaying his products was unavailing. The Court found that “[t]he act [itself] is the crime”9 and, the act having been consummated, “[n]othing more is required to commit the crime.”10 The Court further reasoned: In the opinion of this court it is not necessary that the appellant should have acted with the criminal intent. In many crimes, made such by statutory enactment, the intention of the person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially worthless. It would be impossible of execution. In many cases the act complained of is itself that which produces the pernicious effect which the statute seeks to avoid. In those cases the pernicious effect is produced with precisely the same force and result whether the intention of the person performing the act is good or bad. The case at bar is a perfect illustration of this. […] It is clear from the authorities cited that in the act under consideration the legislature did not intend that a criminal intent should be a necessary element of the crime. The statutory definition of the offense embraces no word implying that the prohibited act shall be done knowingly or willfully. The wording is plain. The Act means what it says. Nothing is left to the interpretation.11 The Court made extensive use of earlier American decisions12 such as those of the Court of Appeals of the State of New York13 to drive the point law until said fine should be paid. From that judgment and sentence the defendant appealed to this court.” Id. 8 “The appellant rests his right to acquittal upon two propositions: First. That before a conviction under the law cited can be had, a criminal intent upon the part of the accused must be proved beyond a reasonable doubt.” Id. at 131. 9 Id. at 138. 10 Id. 11 Id. at 131, 137-38. 12 Id. at 133. 13 E.g., Gardner v. People, 62 N.Y. 299 (1875); Fiedler v. Darrin, 50 N.Y. 437 (1872).

2019 Nadate 93 that, “[s]uch mistakes do not excuse the commission of prohibited acts”14 because, “[t]he rule on the subject appears to be, that in acts mala in se, the intent governs but in those mala prohibita, the only inquiry is, has the law been violated?”15 From this pronouncement, the idea of malum in se16 and malum prohibitum17 was born in the Philippine criminal legal system. Henceforth, it became more and more ingrained, only to evolve from its sensible 1909 conception to an incongruous, inconsistent, and sweeping rule18 that now scantly resembles the Go Chico holding.19 This Article attempts to correct the divergence in Philippine penal jurisprudence from the original holding in Go Chico. In particular, it traces the theory’s adoption from early colonial case law and its usage across Philippine Supreme Court decisions, including in contemporary cases. This frames the scope and legal effects of the malum in se/malum prohibitum distinction or dichotomy and draws out significant doctrinal conflicts in its construction and application. Furthermore, by contrasting this principle with American criminal law, this Article argues that the necessity of reading the element of criminal intent in penal statutes is compelled by due process. Ultimately, this Article seeks to present the proper treatment of mens rea20 in this jurisdiction and demonstrate the need to revisit the

14 Go Chico, 14 Phil. at 133. 15 Id. 16 Lexicons generally define a malum in se is “an offense that is evil or wrong from its nature or by the natural law irrespective of statute.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1369 (Merriam- Webster Inc. 2002). Compare with BRYAN A. GARDNER, ED., BLACK’S LAW DICTIONARY 971 (17th ed.1999) (“A crime or an act that is inherently immoral, such as , , or .”); 26 WORDS AND PHRASES 343 (1953) (“‘Malum in se’ requires the commission of a crime that is not merely prohibited by statute, but is criminal by its inherent nature.”). 17 In contrast to crimes mala in se, a crime malum prohibitum is “an offense prohibited by statute but not inherently evil or wrong.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1369 (Merriam- Webster Inc. 2002). Compare with BRYAN A. GARDNER, ED., BLACK’S LAW DICTIONARY 971 (17th ed.1999) (“An act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral.”); 26 WORDS AND PHRASES 345 (1953) (“A act ‘malum prohibitum’ is an act made wrong by legislation, a forbidden evil.”); FEDERICO B. MORENO, PHILIPPINE LAW DICTIONARY 573 (3RD ED. 1988) (“[A]n act which is not inherently immoral but becomes so because its commission is expressly forbidden by positive law.”). The definitions of both terms under Philippine law are further described in Part I(B)(2), infra. 18 See infra Part II(A). 19 See infra Part I(B)(1). 20 This paper does not attempt to dissect the treatment of the whole concept of mens rea in Philippine jurisprudence, such as general versus specific intent, except insofar as the utilization of the mala dichotomy is concerned. For comprehensive

94 Asian-Pacific Law & Policy Journal [Vol. 20:3 jurisprudential position that the “mala dichotomy” is tied with whether a crime is codified in the Philippines’ Revised Penal Code21 or not. Criminal intent should be read as a requisite in the statutory definitions of offenses and only in cases where expressly removed by legislative fiat may mens rea and the corollary defense of good faith be considered immaterial.

I. THE CONTEMPORARY ARTICULATION OF THE “MALA DICHOTOMY” The jurisprudential treatment of mens rea or criminal intent in Philippine law has been consistently and generally articulated in three logical levels. First, there are distinctions between two sets of penal laws: (1) offenses that are codified in the Revised Penal Code and (2) offenses defined outside the Code, or so called “special laws.”22 Second, special laws are crimes mala prohibita.23 Third, in crimes mala prohibita, intent or mens rea is immaterial and so, too, is the defense of good faith or lack of criminal intent.24 Packaged together, the rule on mens rea under Philippine law can be read as such: criminal intent is immaterial for a finding of conviction under special laws. A. Characterizing the Dichotomy Consider, for instance, the significant intellectual property law case of ABS-CBN Corporation v. Gozon25 which involved the two largest television networks in the Philippines. In ABS-CBN Corp., the Supreme Court addressed the issue of whether there was probable cause to charge several executive officers and employees of GMA Network, Inc. or GMA-

historical and comparative legal discussions on mens rea, see Eugene J. Chesney, The Concept of Mens Rea in the Criminal Law, 29 AM. INST. CRIM. L. & CRIMINOLOGY 627 (1938-1939); Glanville Williams, The Mental Element in Crime, 27 REVISITA JURIDICA DE LA UNIVERSIDAD DE PUERTO RICO 193 (1957-1958); Note, Mens Rea in Federal Criminal Law, 111 HARV. L. REV 2402 (1997-1998); Johan D. Van der Vyer, The International Criminal Court and the Concept of Mens Rea in International Criminal Law, 12 U. MIAMI INT’L & COMP. L. REV. 57 (2004); Hans-Heinrich Jescheck, The doctrine of mens rea in German criminal law – its historical background and present state, 8 COMP. & INT’L L.J. SOUTHERN AFRICA 112 (1975). 21 Act No. 3815, as amended. 22 See infra Part I(B), and cited cases. “A special Penal law is understood to mean any penal law punishing acts which are not treated and penalized by the Revised Penal Code.” GUILLERMO B. GUEVARRA, PENAL SCIENCES AND PHILIPPINE CRIMINAL LAW 24 (1974). 23 See infra Part I(A), and cited cases. 24 See infra Part I(A). 25 G.R. No. 195956, 753 SCRA 1 (S.C., Mar. 11, 2015) (Phil.).

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7 with infringement under Republic Act No. 8293, the Intellectual Property Code. The controversy stemmed from GMA-7’s news coverage of the homecoming of a Filipino overseas worker and hostage victim.26 According to the complainant ABS-CBN Corp.’s allegation, it “conducted live audio- video coverage of and broadcasted the arrival of [the victim] at the Ninoy Aquino International Airport and the subsequent press conference”27 and it “allowed Reuters Television Service […] to air the footages it had taken earlier under a special embargo agreement.”28 As GMA-7 subscribes to Reuters, it received a live video feed of the same coverage. The controversy happened when “GMA-7 immediately carried the live news feed in its program ‘Flash Report,’ together with its live broadcast.”29 But as GMA-7 later contended, it “did not receive any notice,” nor was it “aware that Reuters was airing footages of ABS- CBN.”30 It argued that its news control room staff “saw neither the ‘No Access Philippines’ notice nor a notice that the video feed was under embargo in favor of ABS-CBN.”31 Less than a month later, ABS-CBN Corp. filed a complaint for copyright infringement under Sections 17732 and 21133 of the Intellectual Property Code and, a few months after, the fiscal issued a decision finding

26 “Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi militants and as a condition for his release, a demand was made for the withdrawal of Filipino troops in Iraq. After negotiations, he was released by his captors and was scheduled to return to the country in the afternoon of 22 July 2004. Occasioned by said homecoming and the public interest it generated, both . . . GMA Network, Inc. . . . and [petitioner] made their respective broadcasts and coverage of the live event.” Id. at 12. 27 Id. 28 Id. 29 Id. at 13. 30 Id. 31 Id. 32 On copyright or economic rights. 33 On the scope of rights.

96 Asian-Pacific Law & Policy Journal [Vol. 20:3 probable cause,34 which the Secretary of Justice affirmed.35 On review to the Court of Appeals by petition for certiorari, the court struck down the Secretary’s resolution, stating: Verily, […] the act of petitioners in airing the five (5) second footage was undeniably attended by good faith and it thus serves to exculpate them from criminal liability under the Code. While the Intellectual Property Code is a special law, and thus generally categorized as malum prohibitum, it bears to stress that the provisions of the Code itself do not ipso facto penalize a person or entity for copyright infringement by the mere fact that one had used a copyrighted work or material. Certainly so, in the exercise of one’s moral and economic or copyrights, the very provisions of Part IV of the Intellectual Property Code provide for the scope and limitations on copyright protection under Section 184 and in fact permit fair use of copyrighted work under Section 185. With the aforesaid statutory limitations on one’s economic and copyrights and the allowable instances where the other persons can legally use a copyrighted work, criminal culpability clearly attaches only when the infringement had been knowingly and intentionally committed.36 ABS-CBN Corp. appealed to the Supreme Court and raised two related questions.37 First, it asked, “whether a lack of knowledge that a

34 The Information read: “That on or about the 22nd of July 2004, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping each other, being the Head of News Operations and the Program Manager, respectively, for the News and Public Affairs Department of GMA Network, Inc., did then and there, willfully, unlawfully and feloniously use and broadcast the footage of the arrival of Angelo [d]ela Cruz at the Ninoy Aquino International Airport of which ABS-CBN holds the exclusive ownership and copyright by then and there using, airing, and broadcasting the said footage in its news program ‘FLASH REPORT’ without first obtaining the consent or authority of said copyright owner, to their damage and prejudice.” ABS-CBN Corp., 753 SCRA at 14-15. 35 The resolution was first reversed by Department of Justice Secretary Raul M. Gonzalez, who ruled in favor of respondents and held that good faith may be raised as a defense in the case. On June 29, 2010, however, Acting Secretary Alberto C. Agra issued the Resolution that reversed the Gonzalez Resolution and found probable cause to charge Dela Peña-Reyes and Manalastas for violation of the Intellectual Property Code. Id. at 15-17. 36 Id. at 18. Emphasis omitted in part and supplied in part. 37 “ABS-CBN’s Motion for Reconsideration was denied. It then filed its Petition for Review before this court assailing the Decision and Resolution of the Court of

2019 Nadate 97 material is copyrighted is a defense against copyright infringement.”38 Second, it asked, “whether good faith is a defense in a criminal prosecution for violation of the Intellectual Property Code.”39 In deciding the case, the Supreme Court, much like the Court of Appeals, recalled the following principles on the malum prohibitum/in se dichotomy: The general rule is that acts punished under a special law are malum prohibitum. “An act which is declared malum prohibitum, malice or criminal intent is completely immaterial.” […] “Implicit in the concept of mala in se is that of mens rea.” […] Crimes mala in se presuppose that the person who did the felonious act had criminal intent to do so, while crimes mala prohibita do not require knowledge or criminal intent[.]40 From these premises, the Court concluded that the “[r]espondents cannot invoke the defense of good faith to argue that no probable cause exists.”41 It characterized the nature the copyright infringement42 as a strict

Appeals. […] According to ABS-CBN, the Court of Appeals erred in finding that: a motion for reconsideration was not necessary before a petition for certiorari could be filed; the Department of Justice Secretary committed errors of jurisdiction since the Agra Resolution was issued within its authority and in accordance with settled laws and jurisprudence; and respondents were not liable for copyright infringement.” Id. at 19. 38 Id. 39 Id. 40 ABS-CBN Corp., 753 SCRA. at 63-65 (emphasis added) (citations omitted). 41 Id. at 62 (emphasis added). 42 This inquiry has been the subject of various discussions, see, e.g., Steven Hetcher, The Immorality of Strict Liability in Copyright, 17 MARQ. INTELL. PROP. L. REV. 1 (2013); Geraldine Szott Moohr, Defining Overcriminalization Through Cost-Benefit Analysis: The Example of Criminal Copyright Laws, 54 AM. U. L. REV. 783 (2005); Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory, 83 B.U. L. REV. 731 (2003); Sheldon M. Halpern, Copyright Law in the Digital Age: Malum in Se and Malum Prohibitum, 4 MARQ. INTELL. PROPL L. REV. 1 (2000).

98 Asian-Pacific Law & Policy Journal [Vol. 20:3 liability offense. Noting the opposite treatment43 from other jurisdictions,44 however, it justified: Unlike other jurisdictions that require intent for criminal prosecution of copyright infringement, the Philippines does not statutorily support good faith as a defense. Other jurisdictions provide in their intellectual property codes or relevant laws that mens rea, whether express or implied, is an element of criminal copyright infringement.45 The justification raises many issues. At this juncture, it begs the questions: how about the words “aiding or abetting such infringement” in Sub-section 217.1?46 Or Sub-section 217.3, which uses the terms “which he knows, or ought to know”?47 Surely, how can someone aid or abet without

43 See, e.g., Mitchell E. Radin, The Significance of Intent to Copy in a Civil Action for Copyright Infringement, 54 TEMPLE L. Q. 1 (1981); Robert Conley, Copyright and Contributory Infringement, 23 IDEA: THE J. OF L. & TECH. 185 (1982); Robert C. Denicola, Volition and Copyright Infringement, 37 CARDOZO L. REV. 1259 (2016). See also Alfred C. Yen, Intent and Trademark Infringement, 57 ARIZ. L. REV. 713 (2015). 44 Decisions of foreign tribunals on cases involving laws from which certain Philippine laws have been adopted have “persuasive force and effect in the determination” of controversies regarding the domestic statutes. See, e.g., King v. Hernaez, G.R. No. L-14859, 4 SCRA 792, 805 (S.C., Mar. 31, 1962) (Phil.). 45 ABS-CBN Corporation, 753 SCRA at 66. The Court premised the same on this ground: “In the case of mala in se it is necessary, to constitute a punishable offense, for the person doing the act to have knowledge of the nature of his act and to have a criminal intent; in the case of mala prohibita, unless such words as ‘knowingly’ and ‘willfully’ are contained in the statute, neither knowledge nor criminal intent is necessary. In other words, a person morally quite innocent and with every intention of being a law abiding citizen becomes a criminal, and liable to criminal penalties, if he does an act prohibited by these statutes. Hence, ‘[i]ntent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself[.]’ When an act is prohibited by a special law, it is considered injurious to public welfare, and the performance of the prohibited act is the crime itself. “Volition, or intent to commit the act, is different from criminal intent. Volition or voluntariness refers to knowledge of the act being done. On the other hand, criminal intent — which is different from motive, or the moving power for the commission of the crime— refers to the state of mind beyond voluntariness. It is this intent that is being punished by crimes mala in se.” ABS-CBN Corporation, 753 SCRA at 65-66 (emphasis supplied) (citations omitted). 46 “Any person infringing any right secured by provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty of a crime punishable by […]” Intellectual Property Code, § 217.1. 47 “Any person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of: (a) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article; (b) Distributing the article for purpose of trade, or

2019 Nadate 99 the criminal intent of assisting in the furtherance of the crime?48 Does this mean, therefore, that the principal is punished with a strict liability offense, while those who aid or abet can put forth a defense of good faith? These appear absurd. The Court, however, continued: Because of the use of the word “knowingly” in Canada’s Copyright Act, it has been held that copyright infringement is a full mens rea offense. In the United States, willful intent is required for criminal copyright infringement. […] There is a difference, however, between the required liability in civil copyright infringement and that in criminal copyright infringement in the United States. Civil copyright infringement does not require culpability and employs a strict liability regime where “lack of intention to infringe is not a defense to an action for infringement.” […] Thus, unless clearly provided in the law, offenses involving infringement of copyright protections should be considered malum prohibitum. It is the act of infringement, not the intent, which causes the damage. To require or assume the need to prove intent defeats the purpose of intellectual property protection.49 Ostensibly, the Court concluded in this manner without referring to legislative history, assuming merely that “[w]hen an act is prohibited by a special law, it is considered injurious to public welfare, and the performance of the prohibited act is the crime itself.”50 The Court added: The law is clear. Inasmuch as there is wisdom in prioritizing the flow and exchange of ideas as opposed to rewarding the creator, it is the plain reading of the law in conjunction with the actions of the legislature to which we defer. We have continuously “recognized the power of the legislature […] to forbid certain acts in a limited class of for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or (c) Trade exhibit of the article in public, shall be guilty of an offense and shall be liable on conviction to imprisonment and fine as above mentioned.” Intellectual Property Code, § 217.3 (emphasis added). 48 “A culpable mental state must be found for all offenses for which defendant is to be held as aider and abettor.” 22 C.J.S. §31 (1989), citing State v. Workes, App., 689 S.W. 2d. 782 (Mo. Ct. App. 1985). 49 ABS-CBN Corporation, 753 SCRA at 67, 77 (emphasis added) (citations omitted). 50 Id. at 65.

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cases and to make their commission criminal without regard to the intent of the doer. Such legislative enactments are based on the experience that repressive measures which depend for their efficiency upon proof of the dealer’s knowledge or of his intent are of little use and rarely accomplish their purposes.”51 This is how the mala dichotomy works. It bisects Philippine criminal law into two rather arbitrary and problematic constructs or classification: acts punished under the Revised Penal Code or laws amendatory thereto and acts punished by special law. Then, it applies the sweeping and broad theory that special laws are mala prohibita crimes, where intent is not material. Thus, because intent is not an element of the crime, defenses such as good faith are not available to an accused at all.52 Similarly, consider another strange case, decided just a month after ABS-CBN Corp.: Asistio v. People.53 This case involves another special law, the Cooperative Code of the Philippines or Republic Act No. (RA) 6938. The defendant was convicted under Section 46 of the said Act.54 Without going into the details of the case, the particular strangeness comes from the following statements that the Supreme Court made to justify

51 Id. at 72 (emphasis added). 52 This Article does not delve into how intent must be construed from an act or on the existence of particular or specific criminal intent (dolo specialis). The critique is limited to the mode or analytical process of construing general criminal intent based on the classification of offenses as codified or non-codified. For debates on the terminological confusion of general-versus-specific intent, see, e.g., Gideon Yaffe, Conditional Intent and Mens Rea, 10 LEGAL THEORY 273 (2004); David Crump, What Does Intent Mean?, 38 HOFSTRA L. REV. 1059 (2010); Lloyd L. Weinreb, Manifest Criminality, Criminal Intent, and the “Metamorphosis of Larceny,” 90 YALE L.J. 294 (1980). 53 G.R. No. 200465, 756 SCRA 256 (S.C., Apr. 20, 2015) (Phil.). 54 Section 46 of the Cooperative Code of the Philippines provides: Directors, officers and committee members, who willfully and knowingly vote for or assent to patently unlawful acts or who are guilty of gross negligence or bad faith in directing the affairs of the cooperative or acquire any personal or pecuniary interest in conflict with their duty as such directors, officers or committee member shall be liable jointly and severally for all damages or profits resulting therefrom to the cooperative, members and other persons. When a director, officer or committee member attempts to acquire or acquires, in violation of his duty, any interest or equity adverse to the cooperative in respect to any matter which has been reposed in him in confidence, he shall, as a trustee for the cooperative, be liable for damages and for double the profits which otherwise would have accrued to the cooperative.

2019 Nadate 101 a joint conviction with Article 172, paragraph 2,55 of the Revised Penal Code on the falsification of private documents, which was the means by which the violation under Section 46 was done. It did so without finding a violation on the prohibition against double jeopardy.56 According to the Court: The Information for violation of Section 46 of RA 6938 alleged, on the other hand, that being then such officer and director of the Cooperative, petitioner willfully acquired personal interest or equity adverse to it, in violation of her duty and of the confidence reposed upon her, by entering into a contract with Coca-Cola in her own personal capacity, knowing fully well that the sales profits of such products should have accrued to the Cooperative. The essential elements of violation of Section 46 of RA 6938 are (1) that the offender is a director, officer or committee member; and (2) that the offender willfully and knowingly (a) votes for or assents to patently unlawful acts; (b) is guilty of gross negligence or bad faith in directing the affairs of the cooperative; or (c) acquires any personal or pecuniary interest in conflict with their duty as such directors, officers or committee member.57 At this point, the Court found mens rea to be an element of the crime, even if this is under a special law because the words “willfully” and “knowingly” were used.58 In its plain reading of the law, it found the same

55 Article 172 provides: The penalty of prision correctional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon: […] 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.

56 “Since the Informations filed against petitioner were for separate and distinct offenses as discussed above — the first against Article 172(2) of the Revised Penal Code and the second against Section 46 of the Cooperative Code (RA 6938) — one cannot be pleaded as a bar to the other under the rule on double jeopardy. Besides, it is basic in criminal procedure that an accused may be charged with as many crimes as defined in our penal laws even if these arose from one incident.” Asistio, 756 SCRA at 282. 57 Id. at 281 (emphasis added). 58 “The essential elements of violation of Section 46 of RA 6938 are (1) that the offender is a director, officer or committee member; and (2) that the offender willfully and knowingly (a) votes for or assents to patently unlawful acts; (b) is guilty of gross negligence or bad faith in directing the affairs of the cooperative; or (c) acquires any

102 Asian-Pacific Law & Policy Journal [Vol. 20:3 to be an “essential”59 element. Continuing to the succeeding paragraph, however, the Court cryptically said: Verily, there is nothing common or similar between the essential elements of the crimes of falsification of private document under Article 172 (2) of the [Revised Penal Code] and that of violation of Section 46 of RA 6938, as alleged in the Informations filed against petitioner. As neither of the said crimes can be said to necessarily include or is necessarily included in the other, the third requisite for double jeopardy to attach—a second jeopardy is for the same offense as in the first—is, therefore, absent. Not only are their elements different, they also have a distinct nature, i.e., the former is malum in se, as what makes it a is criminal intent on the part of the offender, while the latter is malum prohibitum, as what makes it a crime is the special law enacting it. In effect, the Court said that a person could be charged and convicted under both Article 172 of the Revised Penal Code and Section 46 of the Cooperative Code, even if the former is a means to commit the latter, because their natures are different.60 Like in ABS-CBN Corp., the Court found mutual exclusivity between a crime malum in se where there is “criminal intent on the part of the offender”61 and crime malum prohibitum, where intent is immaterial. Asistio, however, confounds this further by effectively stating that a crime that does not necessitate the element of intent can be committed through a crime where intent is an element and, still, a person can be convicted with both.

personal or pecuniary interest in conflict with their duty as such directors, officers or committee member.” Id. (emphasis added). 59 Id. 60 “Not only are [the two offenses’] elements different, they also have a distinct nature, i.e., the former is malum in se, as what makes it a felony is criminal intent on the part of the offender, while the latter is malum prohibitum, as what makes it a crime is the special law enacting it.” Asistio, 756 SCRA at 282. Compare this with the concept of complex crime proper in Article 48 of the Revised Penal Code, see People v. Jugueta, G.R. No. 202124, 788 SCRA 331, 354 (S.C., Apr. 5, 2016) (Phil.), citing People v. Neldima, G.R. No. 184500, 680 SCRA 386, 427 (S.C., Sept. 11, 2012) (Phil.) (“In a complex crime, two or more crimes are actually committed, however, in the eyes of the law and in the conscience of the offender they constitute only one crime, thus, only one penalty is imposed. There are two kinds of complex crime. The first is known as a compound crime, or when a single act constitutes two or more grave or less grave while the other is known as a complex crime proper, or when an offense is a necessary means for committing the other.”). 61 Asistio, 756 SCRA at 282.

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This confusion in ABS-CBN Corp. and Asistio lies with the fact that the Court is merely being consistent with precedence and the state of law for close to a century.62 In both cases, the Court has tried to make itself coherent within the framework built by a long line of case law that since Go Chico, as shown, has overarching and overwhelmingly defined the contours of criminal law in the Philippines.

B. The Jurisprudential History of the “Mala Dichotomy” Despite the framework’s origin from Go Chico, a reading of the case does not itself sanction many of the legal and conceptual analyses under the contemporary treatment of the mala dichotomy, especially the categorization of special laws as generally mala prohibita. By tracing the jurisprudential history of this legal rule to determine how the divergence happened, the Article found an important observation regarding the Philippines’ “hybrid” legal system.63 This dichotomy is a result of the interactions of the civil law tradition brought by Spanish colonization (which “lends itself more readily to codification”64) and the common law tradition adopted under the American colonial regime.65 The

62 For instance, the Court, in Asistio, cited the following passage from People v. Doriguez, G.R. No. L-24444, 24 SCRA 163, 171-172 (S.C., July 29, 1968) (Phil.): It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other. 63 See Cesar Lapuz Villanueva, Comparative Study of the Judicial Role and Its Effects on the Theory of Precedents in the Philippine Hybrid Legal System, 65 PHIL. L.J. 42 (1990). 64 Wienczyslaw J. Wagner, Codification in Europe and the Codification Movement in the Middle of the Nineteenth Century in the United States, 2 ST. LOUIS U. L.J. 335, 335 (1953). 65 Owing to its history as a former colony of Spain and the United States, the Philippines has a mixed legal tradition incorporating aspects of the civilian legal tradition of the former and the common legal tradition of the latter. For discussions on this legal transplantation, see generally PACIFICO A. AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL SYSTEM (2011).

104 Asian-Pacific Law & Policy Journal [Vol. 20:3 legal phenomenon that resulted is, in effect, a symptom of incompatible legal transplantations.66 Specifically, an extensive analysis of jurisprudence shows that the divergence from the Go Chico pronouncement as regards the public policy- background of crimes mala prohibita (a common law concept) occurred because of the adoption of the views of commentators on the Revised Penal Code, which little regard for legislative history,67 an approach mainstreamed by the civilian legal tradition.68

1. The Evolution of Case Law from Go Chico A survey of jurisprudence would show how well ingrained the mala dichotomy is in Philippine criminal law since Go Chico. It appears, however, that the next case that invokes the mala dichotomy as precedence would only follow more than two decades after in People v. Bayona.69 The case expressly cites Go Chico as a basis to justify the penalization of possession of firearms during an election gun ban, despite the accused’s contention that he “could not leave his revolver in his automobile without

66 “[W]hen a foreign rule is imposed on a domestic culture […] [i]t is not transplanted into another organism, rather it works as a fundamental irritation which triggers a whole series of new and unexpected events.” Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences, 61 MOD. L. REV. 11, 12 (1998). 67 This may be owed to the fact that the Philippines’ Revised Penal Code was adopted from the codification of Spain, which was based on earlier criminal codifications in continental Europe. This serialization makes the determination of legislative history difficult or impractical. See H. S. SANFORD, THE DIFFERENT SYSTEMS OF PENAL CODES IN EUROPE: A REPORT OF THE ADMINISTRATIVE CHANGES IN FRANCE SINCE THE REVOLUTION OF 1848 (1854). 68 See, infra, Part I(B)(2) and n.112. Civil law commentators form an important part of the statutory construction in the Philippines and their positions, particularly on codified statutes, have been influential, see, e.g., Aviles v. Arcega, G.R. No. 18341, 44 Phil. 924, 932 (S.C., Sept. 18, 1922) (Phil.) (“The doctrine we maintain finds support in the very opinion of the authoritative commentator of the Civil Code, Mr. Manresa”); Angelo v. Pacheco, G.R. No. 32894, 56 Phil. 70, 74 (S.C., Sept. 8, 1931) (Phil.) (“Manresa, that authoritative commentator, thus expresses himself on this point […]”); Legasto v. Verzosa, G.R. No. L-32344, 54 Phil. 766, 772 (S.C., Mar. 31, 1930) (Phil.) (“It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion […]”); Romero v. Villamor, G.R. No. L-10850, 102 Phil. 641, 644 (S.C., Dec. 20, 1957) (Phil.) describing Manresa as “authoritative”; Walter A. Smith & Co., Inc. v. Cadwallader Gibson Lumber Co., G.R. No. L-32640, 55 Phil. 517, 526 (S.C., Dec. 29, 1930) (Phil.) (describing Manresa’s opinion as “authoritative”); see also Wagner, supra note 64 (for a comparison of the civil and common law’s treatment on codification). 69 G.R. No. L-42288, 61 Phil. 181 (S.C., Feb. 16, 1935) (Phil.).

2019 Nadate 105 the risk of losing it because he was alone.”70 Much like the Go Chico holding that is founded on public policy to pursue the regulation, the Court stated: The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. “Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. ...” (U.S. vs. Go Chico, 14 Phil., 128.) […] If we were to adopt the specious reasoning that the appellant should be acquitted because it was not proved that he tried to influence or intended to influence the mind of any voter, anybody could sell intoxicating liquor or hold a cockfight or a horse race on election day with impunity.71 Both cases would be cited three years later in People v. Genato.72 which involved trademark infringement. Go Chico and Bayona found application to rebut the claim of innocence made by the appellants. To quote: The appellants contend that if there has been any violation, Larus & Brother Company was the involuntary violator, but that the accused is entirely innocent. Larus & Brother Company, according to him, applied for the registration of the trade-mark long before any question on this case was ever raised, thereby proving the good faith of Larus & Brother Company. This court is of the opinion that the allegation of good faith and innocent does not constitute a valid defense, it having been admitted that cigarettes bearing the trade-mark “Domino” were distributed and sole in the Philippines, without first registering said trade-mark, which constitutes a violation of the above-cited laws (U. S. vs. Go Chico, 14 Phil., 128; People vs. Bayona, 61 Phil., 181).73 Another subsequent application would be in the 1957 case of People v. Lubo,74 which again involved illegal possession of firearms. Here, the Court said, citing Go Chico and Bayona:

70 Id. at 183. 71 Id. at 186. 72 G.R. No. L-45514, 66 Phil. 351 (S.C., Oct. 17, 1938) (Phil.). 73 Id. 74 G.R. No. L-8293, 101 Phil. 179 (S.C., Apr. 24, 1957) (Phil.). 106 Asian-Pacific Law & Policy Journal [Vol. 20:3

The appellant failed to show that he has a regular license or a provisional permit pending the issuance of regular license applied for, to possess the firearm and ammunition in question issued by the competent authorities. Furthermore, temporary license issued by the Provost Marshal General or the provincial provost marshal, as the case may be are effective only for periods not exceeding three months at a time. The permit to possess the firearm and ammunition in question (Exhibit 2) was issued on 15 January 1948 and has never been renewed. The crime charged is punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved. The plea of lack of animus possidendi untenable. While it is true that there must be possession coupled with intent to possess the firearm to support conviction, appellant's conduct belies his contention. The very fact of possession and use by the appellant and his securing a “temporary license” show beyond doubt that the possidendi exists.75 What is peculiar is that after Lubo, the citation of Go Chico and its derivative cases would increase only during the turn of the 20th century. There are several reasons for this resurgence, mainly: first, the emergence of a string of jurisprudence that follows certain public policy-based laws, namely, the laws on bouncing checks and illegal possession of firearms; and second, the Court’s decisions in the Anti-Fencing Law. Proceeding from this point, Sarmiento v. People, decided in 1980,76 cited Go Chico to reiterate the intent requirement in illegal possession of firearms: All petitioners were, therefore, in law deemed in actual possession of the submachine gun, if not physically, at least constructively, which is just as punishable, even if the possession is only for a short time. The gun was brought along by them in the jeepney, all with fun knowledge of how usefully it would serve their common purpose. Their possession was, therefore, with animus possidendi. Thus, completing the elements of the crime charged which is that of illegal possession of firearm.77

75 Id. at 183. 76 G.R. No. L-36042, 98 SCRA 556 (S.C., July 15, 1980) (Phil.). 77 Id. at 563. Note, however, that in both cases of Lubo and Sarmiento, the Court talked about animus possidendi or the specific intent to commit. This is important as it harks back to the ruling in Go Chico that appears to be the original intention in introducing the mala dichotomy: “Care must be exercised in distinguishing the

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Years after, in 1986, the Court decided the landmark case of Lozano v. Martirez,78 a consolidated case that involved the constitutionality of Batas Pambansa No. 22 (B.P. 22), popularly known as the “Bouncing Check Law.” By characterizing B.P. 22 as punishing an “offense […] not as a crime against property, but against public interest,” Lozano held: A divided Court held in People vs. Sabio, Jr. that Article 315, as amended by Republic Act 4885, does not cover checks issued in payment of pre-existing obligations, again relying on the concept underlying the crime of estafa through false pretenses or deceit—which is, that the deceit or false pretense must be prior to or simultaneous with the commission of the . Since statistically it had been shown that the greater bulk of dishonored checks consisted of those issued in payment of pre-existing debts, the amended provision evidently failed to cope with the real problem and to deal effectively with the evil that it was intended to eliminate or minimize. With the foregoing factual and legal antecedents as a backdrop, the then Interim Batasan confronted the problem squarely. It opted to take a bold step and decided to enact a law dealing with the problem of bouncing or worthless checks, without attaching the law’s umbilical cord to the existing penal provisions on estafa. BP 22 addresses the problem directly and frontally and makes the act of issuing a worthless check malum prohibitum.79 The rationalization of the Court in Lozano and subsequent cases it establishes is important. It makes explicit the principle that offenses malum prohibitum are designed to be strict liability crimes to preserve an important public policy that could otherwise be defeated by invocations of good faith or lack of knowledge. In 1993, the Court promulgated Co v. Court of Appeals,80 which introduced good faith as a defense despite the Court’s prior pronouncement that the law is a crime malum prohibitum. Here, the Court exonerated the defendant on the basis that there was an opinion made by the Minister of differences between the intent to commit the crime and the intent to perpetrate the act. The accused did not consciously intend to commit a crime; but he did intend to commit an act, and the act is, by the very nature of things, the crime itself — intent and all. The wording of the law is such that the intent and the act are inseparable.” Go Chico, 14 Phil. at 138. 78 G.R. No. L-63419, 146 SCRA 323 (Phil., Dec. 18, 1986) (Phil.). 79 Id. at 334 (citations omitted). 80 G.R. No. 100776, 227 SCRA 444 (S.C., Oct. 28, 1993) (Phil.). 108 Asian-Pacific Law & Policy Journal [Vol. 20:3

Justice that checks issued merely to guarantee the performance of an obligation ware not covered by B.P. 22. But the Court did cite the Solicitor General’s invocation of Go Chico and the mala distinction: Inveighing against this proposition, the Solicitor General invokes U.S. v. Go Chico, 14 Phil. 128, applying the familiar doctrine that in crimes mala prohibita, the intent or motive of the offender is inconsequential, the only relevant inquiry being, “has the law been violated?” The facts in Go Chico are substantially different from those in the case at bar. In the former, there was no official issuance by the Secretary of Justice or other government officer construing the special law violated; and it was there observed, among others, that “the defense . . . (of) an honest misconstruction of the law under legal advice” could not be appreciated as a valid defense. In the present case on the other hand, the defense is that reliance was placed, not on the opinion of a private lawyer but upon an official pronouncement of no less than the attorney of the Government, the Secretary of Justice, whose opinions, though not law, are entitled to great weight and on which reliance may be placed by private individuals is reflective of the correct interpretation of a constitutional or statutory provision[.] This is after all a criminal action all doubts in which, pursuant to familiar, fundamental doctrine, must be resolved in favor of the accused. Everything considered, the Court sees no compelling reason why the doctrine of mala prohibita should override the principle of prospectivity [as against the retroactive application of a Supreme Court ruling, which would have compelled an opposite finding], and its clear implications as hereinabove set out and discussed, negating criminal liability.81 In Ibasco v. Court of Appeals,82 decided three years after Co, the Court would resoundingly affirm the view that the B.P. 22 is malum prohibitum in nature.83 Thus:

81 Id. at 455-56 (emphasis added) (citations omitted). 82 G.R. No. 117488, 261 SCRA 449 (S.C., Sept. 5, 1996) (Phil.). 83 In the same decision, the Supreme Court acquiesced to the findings of the trial court which: “Since the act and commission specified in BP Blg. 22 are not necessarily evil or wrongful from their nature and neither are they inherently illicit and immoral and considering that the law which penalize [sic] such act or commission is a special statutory law, the offenses are considered mala prohibita and considering the rule in cases of mala

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The fact that the object of the contract, the animal feeds, was not of good quality is irrelevant in the prosecution of a case involving B.P. Blg. 22, for the said law was enacted to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. It is not the nonpayment of an obligation which the law punishes, but the act of making and issuing a check that is dishonored upon presentment for payment.84 The effects of Reyes and Ibasco would be significant in reifying the mala distinction as regards the malum prohibitum nature of B.P. 22 and this would remain the rule today. For instance, in the 2000 case of Cueme v. People,85 the Court cited Reyes and said: The gravamen of the offense punished under B.P. Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bad check malum prohibitum, an act proscribed by the legislature for being deemed pernicious and inimical to public welfare. Considering the rule in mala prohibita cases, the only inquiry is whether the law has been breached. Criminal intent becomes unnecessary where the acts are prohibited for reasons of public policy, and the defenses of good faith and absence of criminal intent are unavailing.86 Another important legal development that led to the divergence from the Go Chico articulation of the mala distinction is jurisprudence as regards the Anti-Fencing Law or Presidential Decree No. 1612. This was initiated

prohibita, the only inquiry is whether or not the law has been violated—criminal intent is not necessary where the acts are prohibited for reasons of public policy. The defense of good faith and absence of criminal intent would not prosper in prosecution for violation.” Id. at 454 (citations omitted). 84 Id. at 463. 85 G.R. No. 133325, 334 SCRA 795 (S.C., June 30, 2000) (Phil.). 86 Id. at 805; see also Mitra v. People, G.R. No. 191404, 623 SCRA 673, 679 (S.C., July 5, 2010) (Phil.) (“The purpose of BP 22 in declaring the mere issuance of a bouncing check as malum prohibitum is to punish the offender in order to deter him and others from committing the offense, to isolate him from society, to reform and rehabilitate him, and to maintain social order.”); Navarra v. People, G.R. No. 203750, 792 SCRA 331, 340 (S.C., June 6, 2016) (Phil.) (“The mere act of issuing a worthless check is malum prohibitum; it is simply the commission of the act that the law prohibits, and not its character or effect, that determines whether or not the provision has been violated. Malice or criminal intent is completely immaterial.”).

110 Asian-Pacific Law & Policy Journal [Vol. 20:3 by the 1993 case of Lim v. Court of Appeals.87 Here, the Court struck down the contention of the defendant that animus furandi or the intent to steal was not proven by guilt beyond reasonable doubt.88 For its importance, the Court’s extensive argument and sources is dissected in seriatim. Initially, the Court first indicated that intent is read from the overt acts of a person: On the aspect of animus furandi, petitioner is of the belief that this element was not clearly established by the People’s evidence and he, therefore, draws the conclusion that respondent court seriously erred in presuming the existence of intent to gain. Again, this supposition ignores the fact that intent to gain is a mental state, the existence of which is demonstrated by the overt acts of a person (Soriano vs. People, 88 Phil., 368 [1951]; 1 Reyes, Revised Penal Code, Eleventh Rev. Ed., 1991, p. 45; 1 Aquino, Revised Penal Code, 1988 Ed., p. 197). And what was the external demeanor which petitioner showed from the which the trial court and respondent court inferred animus furandi? These circumstances were vividly spelled in the body of the judgment which petitioner chose to blandly impugn and over which he remains indifferent even at this crucial stage. Withal, the sinister mental state is presumed from the commission of an unlawful act in bringing out the tires from his bodega which were loaded on his pick-up (People vs. Sia Teb Ban, 54 Phil., 52 [1929]; 1 Reyes, supra at p. 46; Section 3(b), Rule 131, Revised Rules on Evidence).89 It could have, of course, ended there. But it presented an alternative argument—obiter dictum as regards the immateriality of intent because the crime is punished by a special statute, citing Go Chico and Justice Luis B. Reyes’ commentary on the Revised Penal Code.90 At any rate, dolo is not required in crimes punished by a special statute like the Anti-Fencing Law of 1979 (U.S. vs. Go Chico, 14 Phil. 128 [1909]; 1 Reyes, supra at p. 58) because it is the act alone, irrespective of the motives which constitutes the offense (U.S. vs. Siy Cong Bieng, et

87 G.R. No. 100311, 222 SCRA 279 (S.C., May 18, 1993) (Phil.). 88 Id. at 286-87. 89 Id. at 286. 90 See infra Part I(A)(2) (emphasis added).

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al., 30 Phil., 577 (1915); 1 Reyes, at p. 59; 1 Aquino, supra, at p. 52).91 The fact that the above statement is only obiter is shown by the subsequent phraseology that reverts to the principle that mens rea is read from the actus reus: Verily, when it was proved that petitioner committed the unlawful acts alleged in the information, it was properly presumed that they were committed with full knowledge and with criminal intent, and it was incumbent upon him to rebut such a presumption — a burden which petitioner regrettably failed to discharge (United States vs. Tria, 17 Phil., 303 (1910); 1 Aquino, supra, at p. 45).92 Lim would be extensively quoted three years later in Dunlao, Sr. v. Court of Appeals,93 which also involved an appeal for conviction under the Anti-Fencing Law. From this two-fold development concerning particular felonies, the mala distinction would be applied to a variety of cases. The Court would use the articulation, foremost of Lim and Dunlao (regarding the special statute distinction) in finding special laws to be crimes mala prohibita, often regardless of the text of the statute, as Asistio earlier demonstrated. Thus, in Tan v. People,94 the Court found that the gathering, collection and/or possession, without license, of lumber, which is considered timber or forest product, as prohibited and penalized under the Forestry Reform Code, is a crime malum prohibitum. As such, “absence of malice or criminal intent will not save the day for [the Code’s violators].”95 The same treatment is seen in violation of the Social Security Act of 1997, as the 2010 case of Mendoza v. People96 shows.97 In Mendoza, the Court ruled, citing the established holdings in United Christian Missionary

91 Lim, 222 SCRA at 286-87. 92 Id. at 287. 93 G.R. No. 111343, 260 SCRA 788 (S.C., Aug. 22, 1996) (Phil.). 94 G.R. No. 115507, 290 SCRA 117 (S.C., May 19, 1998) (Phil.). 95 Id. at 130. 96 G.R. No. 183891, 626 SCRA 624 (S.C., Aug. 3, 2010) (Phil.). 97 Id. at 626. “For failure to remit the Social Security System (SSS) premium contributions of employees of the Summa Alta Tierra Industries, Inc. (SATII) of which he was president, Romarico J. Mendoza (petitioner) was convicted of violation of Section 22(a) and (d) vis-à-vis Section 28 of R.A. No. 8282 or the Social Security Act of 1997 by the Regional Trial Court of Iligan City, Branch 4. His conviction was affirmed by the Court of Appeals.”

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Society v. Social Security Commission98 and Roman Catholic Archbishop v. Social Security Commission,99 that “[f]rom the moment the remittance of premiums due is delayed, the penalty immediately attaches to the delayed premium payments by force of law.”100 According to the Court, “[f]ailure to comply with the law being malum prohibitum, intent to commit it or good faith is immaterial.”101

2. The Misconception as Contained in Criminal Law Commentaries Another major source of the divergence from the Go Chico ruling are the opinions stated in commentaries, that the Court has cited to justify certain decisions. An example of this is the case of Lim, which utilized of the commentary of a respected Filipino criminal law expert, Justice Luis B. Reyes.102 In this regard, criminal law commentaries have been universal in their discussion of the mala dichotomy and have often used the case of Go Chico to open their discussions of the topic, usually under Article 3 of the Revised Penal Code on dolo and culpa.103 Early references like Justice Ambrocio Padilla’s 1947 commentary104 on the Revised Penal Code and Dean Vicente J. Francisco’s 1954 work105 have been consistent in adopting this dichotomy. Justice Padilla wrote: Distinction should be made between crimes that are mala in se, felonies under the Penal Code—wherein criminal intent

98 G.R. No. L-26712, 30 SCRA 982 (S.C., Dec. 27, 1969) (Phil.). 99 G.R. No. L-15045, 1 SCRA 10 (S.C., Jan. 20, 1961) (Phil.). 100 Mendoza, 626 SCRA at 629, citing United Christian Missionary Society, 30 SCRA at 987-88 (emphasis and underscoring removed). 101 Mendoza, 626 SCRA at 630, citing Tan v. Ballena, G.R. No. 168111, 557 SCRA 229 (S.C., July 4, 2008) (Phil.). 102 Lim, 222 SCRA at 286-87. 103 Article 3 of the Revised Penal Code provides: Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).

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.

104 CRIMINAL LAW: REVISED PENAL CODE ANNOTATED (P.C.F. Pub. 1947 ed.).

105 1 THE REVISED PENAL CODE (ACT NO. 3815): ANNOTATED AND COMMENDED BY VICENTE J. FRANCISCO (2d ed. East Pub. House 1954).

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is necessary, and the mala prohibita—acts made criminal by special laws—wherein intent is immaterial, provided the prohibited act be voluntarily committed.106 Similarly, Dean Francisco wrote: There is a distinction between crimes which are mala in se, or wrongful from their nature, such as murder, , rape, and many lesser offenses, and those that are mala prohibita, or wrong merely because prohibited by statute, such as gambling. Crimes mala in se are those so serious in their effects on society as to call for the practically unanimous condemnation of its members; while crimes mala prohibita are violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society.107 This position has been adopted by recent commentaries. In the 2007 edition of respected scholar, Justice Florenz D. Regalado’s,108 conspectus on Philippine criminal law,109 he noted: Felonies may be mala in se or mala prohibita. The American concepts thereof which were adopted in our jurisdiction is that a malum in se is a wrong in itself, involving as it does an illegality from its very nature (State vs. Sherdowdy, 45 N.M. 516, 18 P. 2, 380). A malum prohibitum, on the other hand, involves an act which is wrong only because it is prohibited, and it is not inherently immoral but becomes wrong only because its commission is expressly forbidden by positive law (People vs. Pavlic, 227 Mich. 563, N.W. 371, 35 ALR) on considerations of public policy, order and convenience.110

106 Id. at 17.

107 FRANCISCO, supra note 105, at 46-47 (citation omitted). 108 The Philippine Supreme Court has viewed Justice Regalado’s work with authority, see Manuel v. People, G.R. No. 165842, 476 SCRA 461, 487-88 (S.C., Nov. 29, 2005) (Phil.) (“According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate.”); People v. Trestiza, G. R. No. 193833, 660 SCRA 407, 419 (S.C., Nov. 16, 2011) (Phil.) (“Even an eminent jurist, Justice Florenz B. Regalado elucidates on this point clearly.”).

109 CRIMINAL LAW CONSPECTUS (3rd ed. Nat’l Book Store 2007). 110 Id. at 18.

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Meanwhile, Leonor D. Boado’s 2008 commentary on the Revised Penal Code and special penal laws discussed:111 Crimes mala in se are acts or omissions which are inherently evil (mala – evil; in se – by itself). Generally, crimes mala in se are punished under the Revised Penal Code. There are however crimes which although punished under special laws are deemed mala in se, such as those which are mere modification of the provisions of the Code like cattle rustling which modifies Articles 308, 309 and 310 on qualified . Thus, P.D. 533 is not a malum prohibitum but a modification of theft and malicious mischief. Therefore, the rules and systems on penalties under the Revised Penal Code apply. (People vs. Macatanda, infra). (However, the law on carnapping which although modifying the same Article was declared in a case as malum prohibitum) […] [Crimes mala prohibita] are acts which are made evil because there is a law prohibiting the same. These would not be wrong but for the fact that positive law forbids them. In this case, the only question is, has the law been violated? When the act is illegal, intent of the offender is immaterial. (Dunlao, Sr. vs. Court of Appeals, G.R. No. 111242, August 22, 1996, 73 SCAD) For instance, when a check is presented for payment, the drawee bank will generally accept the same regardless of whether or not it was issued in payment of an obligation or merely to guarantee the said obligation. What the punishes is the issuance of a bouncing check not for the purpose for which it was issued nor the term and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum. (Cruz v. Court of Appeals, G.R. No. 108738, June 17, 1993, 52 SCAD).112

111 NOTES AND CASES ON THE REVISED PENAL CODE (ACT NO. 3815), AS AMENDED (BOOKS 1 AND 2) AND SPECIAL PENAL LAWS (2008 ed. Rex Book Store). 112 Id. at 15.

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In the same vein, in the 2012 edition of Justice Luis B. Reyes canonical work113 on the Revised Penal Code,114 he stated: The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code. When the acts are inherently immoral, they are mala in se, even if punished are inherently immoral, they are mala in se, even if punished by special laws. On the other hand, there are crimes in the Revised Penal Code which were originally defined and penalized by special laws. Among them are possession and use of opium, malversation, brigandage, and libel. The term mala prohibita refers generally to acts made criminal by special laws.115 These cases and commentaries are clear in their articulation that the mala dichotomy has gained far-reaching influence and acceptance in Philippine criminal law. There is doctrinal consistency in the treatment of mens rea insofar as the code-classification is concerned, especially with respect to the idea that special laws are mala prohibita in nature. As presented, however, there are problems as regards this treatment. ABS-CBN Corp. and Asistio, for instance, exhibit the danger of accepting this doctrine too far, without regard to the proper interpretation of what mala in se or mala prohibita really means, as originally explicated in Go Chico. This has not escaped commentators, who have also observed inconsistencies in this distinction. For instance, Justice Reyes noted: When the acts are inherently immoral, they are mala in se, even if punished under special law. […]

113 Justice Luis B. Reyes’ commentary on criminal law has gained great respect in the Philippine Supreme Court, see, e.g., Santiago v. People, G.R. No. 200233, 763 SCRA 54, 63 (S.C., July 15, 2015) (Phil.) (“In referring to Viada, Justice Luis B. Reyes, an eminent authority in criminal law, writes that ‘a person, whether man or woman, who knowingly consents or agrees to be married to another already bound in lawful wedlock is guilty as an accomplice in the crime of bigamy.’”); Lim Lao v. Court of Appeals, G.R. No. 119178, 274 SCRA 572, 584 (S.C., June 20, 1997) (Phil.) (“Justice Luis B. Reyes, an eminent authority in criminal law, also enumerated the elements of the offense defined in the first paragraph of Section 1 of B.P. 22”).

114 THE REVISED PENAL CODE: CRIMINAL LAW (18th ed., Rex Book Store 2012). 115 Id. at 58. This has been a position consistently held by Justice Reyes. Compare, for instance, LUIS B. REYES, 1 THE REVISED PENAL CODE: CRIMINAL LAW 34 (3d. 1958 rev. ed.) (“The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code. The term mala prohibita refers to acts made criminal by special laws.”).

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The Revised Election Code, as far as its penal provisions are concerned, is a special law, it being a part of the Revised Penal Code or its amendment.116 In Boado’s Notes and Cases on the Revised Penal Code and Special Penal Laws,117 a similar paradox is reached: Even if a special law uses the terms of penalties in the Code, that alone will not make the act or omission malum in se. The law may only intend to make the Code apply suppletorily thereto. For instance, the Dangerous Drugs Act (R.A. 6425, as amended by R.A. 7659) employed the penalties used in the Code but its violations were still deemed as malum prohibitum. Nevertheless, the system of penalties under the Code was applied to violations involving dangerous drugs under that law. Likewise, the penalty imposable pursuant to the Indeterminate Sentence Law was also determined following the rules under the Revised Penal Code.118 The succeeding section would further elucidate this.

II. THE INCONGRUOUS TREATMENT OF MENS REA Consider, again, the 2007 edition of former Justice Regalado’s Conspectus,119 where he wrote: The conventional distinctions between them are stated in some books as follows: (a) mala in se require criminal intent while in mala prohibita, the mere commission of the prohibited act, regardless of intent, is sufficient, and (b) mala in se are those felonies covered by the Revised Penal Code, whereas mala prohibita refer to acts punished by special laws. The second distinction is inaccurate as the Code itself penalizes certain acts as felonies regardless of the intent of the accused, e.g., illegal possession of picklocks (Art. 304), correspondence with a hostile country (Pars. 1 and 2, Art. 120), illegal exaction (Par. 2m Art. 213), and crimes committed by culpa (Art. 365). On the other hand, some

116 REYES, supra note 115, at 59.

117 BOADO, supra note 111. 118 Id. at 16.

119 REGALADO, supra note 108.

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special laws require criminal intent, e.g., omission of voters in the registry list (Sec. 15, R.A. 180, Revised Election Code [now, Sec. 216(y)(17), B.P. 881, Omnibus Election Code]), subversion (R.A. 1700 and its amendments until its repeal), illegal possession, etc. of firearms (P.D. 1866, as amended by R.A. 8294), child abuse (R.A. 7610), and sexual harassment (R.A. 7877), to name a few.120 In two paragraphs, Justice Regalado summarized the incongruous treatment of mens rea in the mala dichotomy, one that we have introduced in briefly discussing the 2016 Asistio case.121 In this section, we will be dissecting this “incongruity” more closely to make clear that this well- entrenched premise in Philippine penal law is flawed. Ultimately, this drives us into the conclusion that we should revisit and remove this distinction in the first place and read intent based on how the offense is defined—not at how the offense is published. A. The Inconsistency in Code-Special Law Interpretation Justice Regalado’s commentary is correct in stating that the distinction is inaccurate.122 But his statement does not fully show the scope and magnitude of this inaccuracy. The fact is, this distinction is filled with so many exceptions that it does not work to have it as a general rule in the first place. Consider the 2015 case of Jacaban v. People,123 which said: Albeit, PD 1866, as amended by RA 8294, is a malum prohibitum and that the Revised Penal Code is generally not applicable, it has been held that when a special law, which is a malum prohibitum, adopts the nomenclature of the penalties in the Revised Penal Code, the latter law shall apply.124

120 Id. at 19. 121 See Part I(A), supra note 24.

122 See REGALADO, supra note 108, at 18-19. 123 G.R. No. 184355, 754 SCRA 98 (S.C., Mar. 23, 2015) (Phil.); see also People v. Simon. G.R. No. 93028, 234 SCRA 555, 576 (S.C., July 29, 1994) (Phil.) (“While these are special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express or implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its allied legislation, which could never have been the intendment of Congress.”). 124 Jacaban, 754 SCRA at 109-10.

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Consider, too, the controversial case of Estrada v. Sandiganbayan,125 involving the deposed President Joseph Ejercito Estrada, which questioned the constitutionality of the Plunder Law or Republic Act No. 7080, as amended by Republic Act No. 7659. Concededly, not being defined under the Revised Penal Code, the law is a special law, but under the pen of Justice Josue Bellosillo, a respected constitutionalist, the Court said: 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.126 Consider, too, the ruling in Lluz v. Commission on Elections and Caesar O. Vicencio,127 which concerned a violation of another special law allegedly committed by the private respondent under Section 262 in relation to Section 74 of Batas Pambansa Blg. 881. In Lluz, the petitioners charged Vicencio under this provision128 for allegedly misrepresenting himself as a Certified Public Accountant.

125 G.R. No. 148560, 369 SCRA 394 (S.C., Nov. 19, 2001) (Phil.). 126 Id. at 480-81 (citation omitted). 127 G.R. No. 172840, 523 SCRA 456 (S.C., July 7, 2007) (Phil.). 128 The pertinent part of Section 74 of Batas Pambansa Blg. 881 provides, with emphasis added: The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that

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In acquitting the private respondent, despite the arguments of the petitioners that “a violation being an election offense, it is malum prohibitum and immediately gives rise to criminal liability upon proof of commission,”129 the Court ratiocinated: Were we to follow petitioners’ line of thought, for misrepresentation of a non-material fact, private respondent could be prosecuted for an election offense and, if found guilty, penalized with imprisonment and other accessory penalties. […] Further compelling us to dismiss this petition is the consideration that any complaint against private respondent for under the Revised Penal Code would necessarily have to allege the element of materiality. The pertinent section of the Revised Penal Code states: Art. 183. False testimony in other cases and perjury in solemn affirmation.— The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provision of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. The basis of the crime of perjury is the willful assertion of a falsehood under oath upon a material matter. Although the term “material matter” under Article 183 takes on a fairly general meaning, that is, it refers to the main fact which is the subject of inquiry, in terms of being an element in the execution of a statement under oath it must be understood as referring to a fact which has an effect on the outcome of the proceeding for which the statement is being executed. Thus, in the case of a certificate of candidacy, a material matter is a fact relevant to the validity of the certificate and which could serve as basis to grant or deny due course to the certificate in case it is assailed under Section 78.130

the facts stated in the certificate of candidacy are true to the best of his knowledge. 129 Lluz, 523 SCRA at 466. 130 Id. at 472-74 (emphasis added) (citations omitted).

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Compare Lluz with Garcia v. Court of Appeals,131 a 2006 electoral case concerning an alleged violation of another special law, the Electoral Reforms Act of 1987 or Republic Act No. 6646. The threshold question here is whether the acts prohibited under Section 27(b)132 are mala in se. This is important because the defendant alleged that “there was no motive on her part to reduce the votes of the private complainant.”133 On the other hand, the complainant and private respondent contends “that good faith is not a defense in the violation of an election law, which falls under the class of mala prohibita.”134 In deciding the case, the Court first enunciated the general rule: 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.135 Then, the Court proceeded to address the issue, without much discussion as to how it arrived at the exception to the aforementioned general rule: Clearly, the acts prohibited in Section 27(b) are mala in se. For otherwise, even errors and mistakes committed due to overwork and fatigue would be punishable. Given the volume of votes to be counted and canvassed within a limited amount of time, errors and miscalculations are bound to happen. Moreover, it could not be the intent of the law to

131 G.R. No. 157171, 484 SCRA 617 (S.C., Mar. 14, 2006) (Phil.). 132 “Election Offenses. —In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense: […] (b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes.” Republic Act No. 6646, § 27. 133 Garcia, 484 SCRA at 622. 134 Id. 135 Id. at 622-23.

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punish unintentional election canvass errors. However, intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another.136 Similarly, consider the Court’s long quandary on possession and use of illegal firearms. In 1994, the Court, in People v. De Gracia,137 asked: [I]s the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.138 It answered this query based on the general rule again, to conclude that the crime is malum prohibitum and mens rea is immaterial: When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.139 The Court, however, noted that the special intent of animus possedendi must be read into the equation and finding that “there is no doubt in our minds that appellant De Gracia is indeed guilty of having intentionally possessed several firearms, explosives and ammunition without the requisite license or authority therefore”140 affirmed the defendant’s conviction. Note how the Court discussed this special intent:

136 Id. at 623. 137 G.R. No. 102009, 233 SCRA 716 (S.C., July 6, 1994) (Phil.). 138 Id. at 726. 139 Id. 140 Id. at 727.

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In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm.141 This problem is more complicated than this. Consider People v. Quijada,142 which had to iron out the doctrine involving the aggravating effects of illegal possession of firearms with the mala in se prescriptions for or murder in the Revised Penal Code. Recalling De Gracia, the Court said: 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, P.D. No. 1866. It is a malum prohibitum which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his martial law powers, 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. If intent to commit the crime were required, enforcement of the decree and its policy or purpose would be difficult to achieve. Hence, there is conceded wisdom in punishing illegal possession of firearm without taking into account the criminal intent of the possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled, of course, by animus possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other criminal or felonious intent which an accused may have harbored in possessing the firearm.143

141 Id. at 726. 142 G.R. No. 115008, 259 SCRA 191 (S.C., July 24, 1996) (Phil.). 143 Id. at 228 (citations omitted).

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Finding itself in a theoretical quagmire, the Court eventually gave up even trying to make sense of the mala dichotomy, resignedly saying that “[a] long discourse then on the concepts of malum in se and malum prohibitum and their distinctions is an exercise in futility.”144 Seeing the majority’s problem, Justice Regino Hermosisima proposed a simple solution in his concurrence:

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.145

144 Id. at 229 (emphasis added). 145 Id. at 269 (Hermosisima, Jr., J., concurring). See also Justice Regalado’s separate opinion: “Nor should we hold a ‘judicial prejudice’ from the fact that the two forms of illegal possession of firearms in Presidential Decree No. 1866 are mala prohibita. On this score, I believe it is time to disabuse our minds of some superannuated concepts of the difference between mala in se and mala prohibita. I find in these cases a felicitous occasion to point out this misperception thereon since even now there are instances of incorrect assumptions creeping into some of our decisions that if the crime is punished by the Revised Penal Code, it is necessarily a malum in se and, if provided for by a special law, it is a malum prohibitum. It was from hornbook lore that we absorbed the distinctions given by text writers, claiming that: (1) mala in se require criminal intent on the part of the offender; in mala prohibita, the mere commission of the prohibited act, 4regardless of intent, is sufficient; and (2) mala in se refer to felonies in the Revised Penal Code, while mala prohibita are offenses punished under special laws. The first distinction is still substantially correct, but the second is not accurate. In fact, even in the Revised Penal Code there are felonies which are actually and essentially mala prohibita. To illustrate, in time of war, and regardless of his intent, a person who shall have correspondence with a hostile country or territory occupied by enemy troops shall be punished therefor. An accountable public officer who voluntarily fails to issue the required receipt for any sum of money officially collected by him, regardless of his intent, is liable for illegal exaction. Unauthorized possession of picklocks or similar tools, regardless of the possessor's intent, is punishable as such illegal

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B. Overcriminalization from an Overzealous Reading? From this review of jurisprudence, it has become clear that the mala dichotomy is unworkable. It cannot hold water by its internal contradictions alone. But, as shown in ABS-CBN Corp. and Asistio, both decided less than five years ago, the Supreme Court has not disabused themselves of this faulty idea that treats mens rea without respect to legislative intent or the nature of the offense. Unfortunately, this issue extends beyond legal theory or methods; the prosecution or conviction that follows the legal debate and discourse impact real people. As long as this flawed conception lives in our jurisprudence, the unintended consequence of overcriminalization and overpenalization exists. In this section, we give several examples. In United Coconut Planters Bank v. Looyuko,146 the Court reiterated that the Trust Receipts Law is a crime malum prohibitum and “[t]here is no requirement to prove intent to defraud.”147 But, note that the Trust Receipts Law is worded as to attach it to the Revised Penal Code offense of estafa, a crime malum in se. Specifically, the pertinent section provides: Sec. 13. Penalty clause. - The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three Hundred and Fifteen, Paragraph One (b) of Act Numbered Three Thousand Eight Hundred and Fifteen, as amended, otherwise known as the Revised Penal Code. If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in this Decree shall be imposed upon the directors,

possession. These are felonies under the Revised Penal Code but criminal intent is not required therein. On the other hand, I need not mention anymore that there are now in our statutes so many offense punished under special laws but wherein criminal intent is required as an element, and which offenses are accordingly mala in se although they are not felonies provided for in the Code.” Id. at 251-53 (Regalado, J., concurring in part and dissenting in part). 146 G.R. No. 156337, 534 SCRA 322 (S.C., Sept. 28, 2007) (Phil.). 147 Id. at 335. Citing Ong v. Court of Appeals, G.R. No. 119858, 401 SCRA 648, 658 (S.C., Apr. 29, 2003) (Phil.).

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officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense.148 Thus, despite this statement, which the Court said was a dictate of jurisprudence, it had to add: On the other hand, the elements of estafa under Article 315 (1-b) of the RPC are as follows: (1) that money, goods, or other personal properties are received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (2) that there is a misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (3) that such misappropriation or conversion or denial is to the prejudice of another; and, (4) that there is a demand made by the offended party on the offender. Moreover, it is a settled rule that failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation. On the basis of the above-quoted findings of the DOJ Secretary, coupled with the documented allegations of petitioner in its complaint-affidavit, as well as the failure of respondents to substantiate their defenses, it appears that there exists a sufficient ground to engender a well-founded belief that the crime of estafa as defined under Article 315 (1-b), in relation to Section 13 of P.D. No. 115, has been committed; and that the respondents are probably guilty thereof and should be held for trial. Hence, the DOJ Secretary committed grave abuse of discretion in directing the withdrawal of the information for estafa filed against them.149 Consider, too, the law on illegal recruitment. Here, the 2012 case of People v. Chua150 is illustrative. Chua involved the appeal of defendant Melissa Chua from a trial court decision that found her guilty beyond reasonable doubt of illegal recruitment in the large scale, as well as four counts of estafa.151 What is material in this case is this Court’s

148 Presidential Decree No. 115, § 13. 149 United Coconut Planters Bank, 534 SCRA at 335-36 (citations omitted). 150 G.R. No. 187052, 680 SCRA 575 (S.C., Sept. 13, 2012) (Phil.). 151 “Before us is an appeal from the September 15, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01006. The Court of Appeals had affirmed with

126 Asian-Pacific Law & Policy Journal [Vol. 20:3 pronouncement: “Worth stressing, the Migrant Workers and Overseas Filipinos Act of 1995 is a special law, a violation of which is malum prohibitum, not mala in se. Intent is thus, immaterial and mere commission of the prohibited act is punishable.” What are these prohibited acts? For Chua, the information provides the following: [She] did then and there willfully, unlawfully, for fee, recruit and promise employment/job placement to [three victims] without first having secured the required license from the Department of Labor and Employment as required by law, and charge or accept directly or indirectly from said complainants various amounts as placement fees in consideration for their overseas employment, which amounts are in excess of or greater than that specified in the schedule of allowable fees prescribed by the POEA, and without valid reasons and without the fault of said complainants, failed to actually deploy them and failed to reimburse expenses incurred in connection with their documentation and processing for purposes of their deployment.152 Now, never mind the fact that the fiscal used “willfully.” Instead, look at the law’s own definitions of what, among many, would constitute illegal recruitment: “To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority”;153 “To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment”;154 “To influence or attempt to influence any persons or entity not to employ any worker who has not applied for employment through his agency;”155 “To obstruct or attempt to obstruct

modification the Decision of the Regional Trial Court (RTC) of Manila, Branch 33, in Criminal Case No. 03-217999-403. The RTC found appellant Melissa Chua, a.k.a. Clarita Ng Chua, guilty beyond reasonable doubt of illegal recruitment in large scale and four counts of estafa. The Court of Appeals modified the penalty imposed upon appellant for each count of estafa to an indeterminate penalty of imprisonment for 4 years and 2 months of prision correccional as minimum, to 13 years of reclusion temporal, as maximum.” Id. at 579. 152 Chua, 680 SCRA at 579-80 (emphasis added). 153 Republic Act. No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995), § 6(c). This law was subsequently amended by Republic Act No. 10022. 154 Republic Act. No. 8042, § 6(d). 155 Republic Act. No. 8042, § 6(e).

2019 Nadate 127 inspection by the Secretary of Labor and Employment or by his duly authorized representative”.156 At first blush, it fails reason to understand how misrepresentation, inducement, influencing, or obstructing can be done inadvertently, i.e., without any general criminal intent whatsoever. But because the law in question is a “special law,” apparently these acts can all be done inadvertently and would still result to an offense, which now is punishable by even graver penalties.157 Yet, look at estafa, which is graduated to take into account the damage created. And so, Chua reaffirms that it is “well-established in jurisprudence that a person may be charged and convicted for both illegal recruitment and estafa”—the reason being that “illegal recruitment is malum prohibitum, while estafa is mala in se” and “[i]n the first, the criminal intent of the accused is not necessary for conviction,” while “[i]n the second, such intent is imperative.158 Now, what we can gather from this declaration is that the mala distinction has been co-opted to circumvent double jeopardy prohibitions. And we do not see this in illegal recruitment alone. Much earlier, in Ada v. Virola,159 the Court ruled that while Section I of Batas Pambansa Blg. 22 or the Bouncing Checks Act and Article 315, par. 2(d) of the RPC is based on the same act of issuing bouncing checks, the fact that the former is an offense malum prohibitum and the latter, malum in se, is sufficient to create a distinct identity of offenses for which double jeopardy may not be invoked.160

156 Republic Act. No. 8042, § 6(g). 157 The penalties for illegal recruitment under this Section is “imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00).” Republic Act. No. 8042, § 7, as amended by Republic Act No. 10022, § 6. 158 Chua, 680 SCRA at 591. 159 G.R. No. 82346, 172 SCRA 336 (S.C., Apr. 17, 1989) (Phil.). 160 “The prohibition is against a second jeopardy for the same offense. The plea of double jeopardy applies where the offenses in the two informations [sic] are the same in law and in fact. It is not necessarily decisive that the two offenses may have material facts in common, or that they are similar, where they are not in fact the same. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision of law requires proof of an additional fact or element while the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other.” Id. at 340 (citation omitted).

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Consider, too, the landmark case of Disini v. Secretary of Justice,161 where several provisions of the Cybercrime Prevention Act of 2012 were challenged, including Section 7, which provides that: “A prosecution under this Act shall be without prejudice to any liability of any provision of the Revised Penal Code, as amended, or special laws.” In Disini, the Court opted to defer any decision regarding the constitutionality of the section,162 but nevertheless affirmed the government’s position that: [A] single set of acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other.163 Indeed, this position is broadly supported by jurisprudence. For instance, the Court, in Soriano v. People164 said that “[j]urisprudence teems with pronouncements that a single act or incident might offend two or more entirely distinct and unrelated provisions of law.”165 More clearly, in People v. Doriquez,166 the Court noted: It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or

161 G.R. No. 203335, 716 SCRA 237 (S.C., Feb. 18, 2014) (Phil.). 162 Id., at 333. “With the exception of the crimes of online libel and online child , the Court would rather leave the determination of the correct application of Section 7 to actual cases.” 163 Id. at 332-33 (citation omitted). 164 G.R. No. 159517, 591 SCRA 244 (S.C., June 30, 2009) (Phil.). Other examples where the Court found no double jeopardy include simultaneous prosecution under Article 365 for criminal negligence and Article 275 for abandonment under the RPC (Lamera v. Court of Appeals, G.R. No. 93475, 198 SCRA 186, (S.C., June 5, 1991) (Phil.); P.D. 1866 and the RPC provision on murder (see People v. Tac-an, G.R. No. 76338, 182 SCRA 601 (S.C., Feb. 26, 1990) (Phil.); People v. Tiozon, G.R. No. 89823, 198 SCRA 368 (S.C., June 19, 1991) (Phil.), R.A. 337 and P.D. No. 1795 (Soriano); and Section 7 of R.A. No. 3060 and Article 201(3) of the RPC (People v. City Court of Manila, Branch VI, G.R. No. L-36528, 154 SCRA 175 (S.C., Sept. 24, 1987) (Phil.). 165 Soriano, 591 SCRA at 256. The case cites the following decisions: Nierras v. Dacuycuy, G.R. No. 59568, 181 SCRA 1 (S.C., Jan. 11, 1990) (Phil.), People v. Doriquez, G.R. No. 24444, 24 SCRA 163 (S.C., July 29, 1968) (Phil.); People v. Alvarez, G.R. No. 19914, 45 Phil. 472 (S.C., Nov. 27, 1923) (Phil.); People v. Cabrera, G.R. No. 17748, 43 Phil. 64 (S.C., Mar. 4, 1922) (Phil.); United States v. Capurro, G.R. No. 2408, 7 Phil. 24. (S.C., Nov. 24, 1906) (Phil.). 166 24 SCRA 163 (1968).

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identical offense. A single act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Otherwise phrased, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.167 Now, let us return to the idea that the Court has forwarded using the mala dichotomy: if an act constitutes an offense in the Revised Penal Code and a special law, then the said act can be prosecuted under both laws because the former is malum in se and the other is malum prohibitum. This position is notwithstanding the fact that the only difference in their element is the putative existence of intent in the former and the repudiation of intent in the latter. Unfortunately, the confusion as regards the mala dichotomy is so deeply rooted and the courts now have a hard time separating themselves from the mistaken notion. For example, in a concurring opinion the landmark case of Imbong v. Ochoa:168 Petitioners contend that Section 23(a)(1) above is void for vagueness. But some points out that the term “knowingly” used in the law, assailed by petitioners as vague, is sufficiently clear in that it means awareness or deliberateness that is intentional and connotes malice. But “knowingly” and “maliciously” have meanings that set them apart. “Knowingly” means mere awareness or deliberateness. “Maliciously,” on the other hand, connotes an “evil intention.” If the law meant to include malice as an ingredient of the offense described in Section 23(a)(1), it would have added the term “maliciously” to “knowingly.” Nothing in the wordings of the law implies malice and the need for criminal intent. The crime as described is malum prohibitum.169

167 Id. at 171-72 (emphasis added) (citations omitted). 168 G.R. No. 204819, 721 SCRA 146 (S.C., Apr. 8, 2014) (Phil.). 169 Id. at 667 (Abad, J., concurring) (citation omitted). 130 Asian-Pacific Law & Policy Journal [Vol. 20:3

What this declaration means is that even if the law provides the term “knowingly” as to qualify an act, intent is still immaterial because the crime itself is proscribed by a special law. If this concurring opinion were to be followed, only the term “maliciously” can be used to denote intent. Without the word “maliciously,” mens rea cannot be read from a special law. All these ideas about mens rea are problematic. But, more than that, the Court’s legal acrobatics presents a clear danger to criminal justice. After all, criminal laws are subject to strict construction170 because their enforcement means the possible abrogation of property and liberty171—or even life.172 The relaxation of the rules through the retention of standards like the malum in se/malum prohibitum within its contemporary construction

170 People v. Garcia, G.R. No. L-2873, 85 Phil. 651, 656 (S.C., Feb. 28, 1950) (Phil.) (“Criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted. Only those persons, offenses, and penalties, clearly included, beyond any reasonable doubt, will be considered within the statute's operation. They must come clearly within both the spirit and the letter of the statute, and where there is any reasonable doubt, it must be resolved in favor of the person accused of violating the statute; that is, all questions in doubt will be resolved in favor of those from whom the penalty is sought.”); see also People v. Purisima, G.R. No. L-42050, 86 SCRA 542, 562 (S.C., Nov. 20, 1978) (Phil.) (“American jurisprudence sets down the reason for this rule to be ‘the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited.’ The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts.”). 171 “Being an exception and thus in derogation of the Constitution, it must then be strictly construed against the State and liberally in favor of the people.” Echegaray v. Sec’y of Justice, G.R. No. 132601, 301 SCRA 96, 129 (S.C., Jan. 19, 1999) (Phil.) (Panganiban, J., separate opinion). 172 The Philippine Constitution allows the death penalty for heinous offenses, see 1987 CONST. (Phil.), art. III, §19(1). The was, however, suspended by Republic Act No. 93646, passed in 2006.

2019 Nadate 131 becomes an attack of due process.173 As intimated in People v. Temporada:174 It is an ancient rule of statutory construction that penal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed. This simply means that words are given their ordinary meaning and that any reasonable doubt about the meaning is decided in favor of anyone subjected to a criminal statute. This canon of interpretation has been accorded the status of a constitutional rule under principles of due process, not subject to abrogation by statute.175 Clearly, jurisprudential reform is critically warranted.

III. THE RATIONAL APPROACH TO MENS REA INTERPRETATION The divergence in case law from the introduction of Go Chico, therefore, is not so much a conscious adoption of a more socially relevant or contextually grounded doctrine that would justify parting away from original legal rule as it is, simply, an erroneous adoption of an opinion that by stare decisis has been serially reproduced to what it is today. Correcting this divergence—this legal aberration—therefore, means going back in time before the bifurcation in jurisprudence happened and following how Anglo- American tradition has continued in its ordinary course. The rule on mens rea, in general, and the mala dichotomy, in particular, as it stands in American constitutional and criminal law is articulated in the landmark case of Morissette v. United States.176 It is, in

173 See Romualdez v. Commission on Elections, G.R. No. 167011, 553 SCRA 370, 435 (S.C., Apr. 30, 2008) (Phil.) (Carpio, J., dissenting) (“The due process clause, which guarantees that no person shall be deprived of life, liberty or property without due process of law, requires that citizens are given sufficient notice or warning of what is lawful and unlawful conduct under a penal statute. To enforce this guarantee, courts have developed the void for vagueness doctrine. The void for vagueness doctrine expresses the rule that for an act to constitute a crime, the law must expressly and clearly declare such act a crime. A related doctrine is that penal statutes are construed strictly against the state and liberally in favor of the accused.”). 174 G.R. No. 173473, 574 SCRA 258 (S.C., Dec. 17, 2008) (Phil.). 175 Id. at 307 (citation omitted) (emphasis modified). 176 342 U.S. 246 (1952). Morisette remains to be binding precedent. See Barry Jeffrey Stern, Consciousness of Wrongdoing: Mens Rea in Alaska, 1 ALASKA L. REV. 1 (1984); John S. Baker, Jr. & William J. Haun, The “Mens Rea” Component Within the Issue of the Over-Federalization of Crime, 14 ENGAGE 24 (2013); Catherine L. Carpenter, On , Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L. REV. 313 (2004); Shannyn Gaughan, Is It Automatic?: The Mens Rea Presumption and

132 Asian-Pacific Law & Policy Journal [Vol. 20:3 the own words of the United States Supreme Court, “a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far- reaching in federal criminal law.”177 A. Reclaiming the Proper Meaning of the “Mala Dichotomy” Morissette involved the issue of whether an offense which provided that “whoever embezzles, steals, purloins, or knowingly converts”178 property of the United States is punishable by fine and imprisonment required the element of criminal intent. This stemmed, innocuously enough, when the defendant Morissette went hunting in December of 1948 in a wooded area that once was a practice bombing range over which the Air Force dropped simulated bombs at ground targets. Seeing the littered casings,179 he loaded three tons of them on his truck with the idea of salvaging them for profit.180 As the Court found: The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing, but thought the

the Interpretation of the Machinegun Provision of 18 U.S.C. §924(c) in United States v. Burwell, 34 (E. Supp.) BOSTON COLLEGE J. L. & SOC. JUSTICE 53 (2014); Michele Cotton, A Foolish Consistency: Keeping Determinism Out of the Criminal Law, 15 PUB. INTEREST L.J. 1 (2005); Joshua D. Greenberg & Ellen C. Brotnam, Strict Vicarious Criminal Liability for Corporations and Corporate Executives: Stretching the Boundaries of Criminalization, 51 AM. CRIM. L. REV. 79 (2014). 177 Morissette, 342 U.S. at 247 (emphasis added). 178 “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; […] Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.” 18 U.S.C. § 641. 179 “Spent bomb casings were cleared from the targets and thrown into piles ‘so that they will be out of the way.’ They were not sacked or piled in any order, but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.” Morissette, 342 U.S. at 247. 180 On his trial, Morissette, as he had at all times told investigating officers, testified that, from appearances, he believed the casings were cast-off and abandoned, that he did not intend to steal the property, and took it with no wrongful or criminal intent.” Id. at 248-49.

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property was abandoned, unwanted and considered of no value to the Government.181 Nevertheless (much like the entrepreneurial Go Chico), he was indicted, convicted, and sentenced to imprisonment for two months or to pay a fine of $200.182 The trial court did not give credence to his defense that he took the weathered casings without criminal intent. On appeal, the Court of Appeals affirmed his conviction,183 taking it further as to say that his defense of lack of intent actually meant that he “was guilty of its violation beyond a shadow of doubt, as evidenced even by his own admissions.”184 The Court of Appeals, moreover, ruled “that th[e] particular offense require[d] no element of criminal intent” because of “the failure of Congress to express such a requisite.”185 The Supreme Court reversed. It did so by first saying that the “culpable state of mind” or mens rea is an “ancient requirement”; it is “no provincial or transient notion.”186 Instead, “[i]t is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”187 By dissecting the historical treatment of mens rea in common law,188 it held that there is judicial, and legislative, recognition that “intent was so inherent in the idea of the offense that it required no statutory affirmation.”189 But, despite this “unanimity,”190 the Court recognized that there are “duties […] sanctioned by a more strict civil liability”191 because of the “peculiar nature and quality of the offense.”192 For such cases, “legislation dispenses with the conventional requirement for criminal conduct – awareness of some wrongdoing [i]n the interest of the larger

181 Id. at 248. 182 Id. 183 Morisette v. United States, 187 F.2d 427, 431 (6th Circ. 1951). 184 Morissette, 342 U.S. at 249. 185 Id. at 250. 186 Id.

187 Id. See also n.4, quoting Roscoe Pound, Introduction to Sayre, in CASES ON CRIMINAL LAW (1927) (“Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”). 188 Morissette, 342 U.S. at 251-54. 189 Id. at 252. 190 Id. 191 Id. at 254. 192 Id. at 259.

134 Asian-Pacific Law & Policy Journal [Vol. 20:3 good,” thereby “put[ting] the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.”193 There are, however, difficulties with the Court’s acknowledgment of true mala prohibita crimes or “public welfare crimes.” Quoting United States v. Dotterweich,194 it conceded: “Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.”195 But this is not to say that the default approach should be to construe the legislature’s silence as having removed intent as an element. Precisely because of the “unanimity” and fundamentality of mens rea in criminal law tradition, the opposite should be the case. Thus, the Court held: Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. […] [W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.196 To rule otherwise, the Court warranted, would be to sanction injustice for convenience; it is to: radically […] change the weights and balances in the scales of justice. The purpose and obvious effect of doing

193 Id. at 260. 194 320 U.S. 277 (1943). 195 Id. at 280-81, 284. 196 Morissette, 342 U.S. at 261-63 (emphasis added). 2019 Nadate 135

away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common law crimes on judicial initiative.197 From these discussions, the Court held that “mere omission […] of any mention of intent will not be construed as eliminating that element from the crimes” altogether.198 It held, too, that “[w]here intent of the accused is an ingredient of the crime charged, its existence is a question of fact”199 that cannot be presumed200 because “this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.”201 B. A Radical Reconstruction of Case Law The implications of this recommended re-reading would be far- reaching. In a survey of laws passed from January to March 2019 alone, at least seven have penal provisions.202 Republic Act No. 11188 alone defines at least 19 discrete offenses.203 Retaining the current construction means that, in most of these offenses, criminal intent would be presumably immaterial because they are defined under special laws—despite terms like “intentional” attached to an offense.204 It would also mean that a person may be prosecuted under both any these special laws and the Revised Penal Code for the same act. In the case of Republic Act No. 11188, this leads to possible

197 Id. at 263. 198 Id. 199 Id. at 274. 200 Id. 201 Id. 202 Namely: Republic Act No. 11235 (Motorcycle Crime Prevention Act); Republic Act No. 11241 (The Philippine Occupational Therapy Law); Republic Act No. 11222 (Simulated Birth Rectification Act); Republic Act No. 11229 (Child Safety in Motor Vehicles Act); Republic Act No. 11232 (Revised Corporation Code of the Philippines); Republic Act No. 11223 (Universal Health Care Act); Republic Act No. 11188 (Special Protection of Children in Situations of Armed Conflict Act). 203 Republic Act No. 11188, § 9. 204 For instance, “intentional maiming” and “intentional delayed reporting” under Sections 9(a)(3) and 9(d)(3), respectively, of Republic Act No. 11188.

136 Asian-Pacific Law & Policy Journal [Vol. 20:3 multiple prosecutions for acts like “killing,”205 “rape,”206 or “arbitrary detention.”207 Recasting the law based on a correct string of jurisprudence, Morisette (and even Go Chico) requires us to deal with the question of statutory construction in a more cumbersome approach. First, mens rea or scienter should be read as requisite in the statutory definitions of offenses. Second, only in the narrow application where expressly removed by legislative fiat or by the nature and subject matter of the penal provision as a narrowly tailored strict liability crime may intent be considered immaterial and the corollary defense of good faith unavailing.208 This puts the onus to the judiciary to be more circumspect in its duty of construing the law, and the legislature to be more prudent in crafting and wording penal statutes— not to citizens or individuals who are otherwise presumed innocent for all and every element of a crime.

CONCLUSION There are important lessons that can be gathered from the Philippines’ experience with the mala dichotomy. How it was adopted reflects the history of the nation as a colony and demonstrates how easy it is to transplant legal concepts with far-reaching implications because of the dual or “hybrid” nature of the legal system. This scope or diversity in legal sources has given the Supreme Court flexibility in interpreting the law. It has, as a result, supported its decision not only with decisions of the United States’ federal and state courts, but also with decisions of the courts of Spain209 and even other jurisdictions210 or views of commentators and scholars from both hemispheres.

205 Republic Act No. 11188, § 9(a)(1). Compare with Act No. 3815, art. 246- 249. 206 Republic Act No. 11188, § 9(a)(4). Compare with Act No. 3815, art. 335. 207 Republic Act No. 11188, § 9(d)(6). Compare with Act No. 3815, art. 124. 208 The Supreme Court has done this for only a few cases. For instance, in Dungo v. People, the Court carefully examined the legislative history of Republic Act No. 8049 or the Anti-Hazing Law of 1995 to characterize it as a crime malum prohibitum. See Dungo v. People, G.R. No. 209464, 761 SCRA 375, 410-414 (S.C., July 1, 2015) (Phil.) (extensively citing Senate deliberations). 209 See, e.g., Ivler v. Modesta-San Pedro, G.R. No. 172716, 635 SCRA 191, 206 n.20 (S.C., Nov. 17, 2010) (Phil.), quoting People v. Buan, G.R. No. L-25366, 22 SCRA 1383, 1386 (S.C., Mar. 29, 1968) (Phil.); Valenzuela v. People, G.R. No. 160188, 525 SCRA 306, 328 (S.C., June 21, 2007) (Phil.); People v. Bañez, G.R. No. 125849, 301 SCRA 248, 258 (S.C., Jan. 20, 1999) (Phil.), quoting People v. Formigones, G.R. No. L- 3246, 87 Phil. 658, 661 (S.C., Nov. 29, 1950) (Phil.). 210 See, e.g., Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. No. 171947, 574 SCRA 661, 688 nn.36-37 (S.C., Dec. 18, 2008) (Phil.) (adopting

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How the treatment of mens rea became distorted also shows how stare decisis could ingrain a wrong idea and make it law. How it was misconstrued ultimately validates Justice Robert H. Jackson’s famous line in Brown v. Allen,211 that the Supreme Court is not final because it is infallible, but that it is infallible because it is final—and because its decisions form part of the law of the land, every footnote or in-text citation becomes inevitably part of it as well. This potential for serializing and institutionalizing mistakes, therefore, points to the need to be vigilant at how our court of last resort justifies its decisions. Cut and dry formulas like the mala dichotomy may not serve the ends of justice—to the contrary, it may even frustrate this— even if it saves time from reading legislative deliberation records and unclogs dockets a lot faster. As such, much like the categorical denial in Morissette of a “closed definition” as to when intent is material or not,212 our courts must reject its contemporary and historically incongruous treatment of mens rea to address issues of over-criminalization and real-life due process infringements. Criminal laws, after all, embody the State’s supreme exercise of authority.213 They are the foremost manifestation of what a “law” is214 and their coercive nature, for the pain of punishment, is designed to ensure conformity and civility and preserve the social order. the Indian Supreme Court’s use of the doctrine of continuing mandamus); MVRS Publ’n, Inc. v. Islamic Da’wah Council of the Philippines, Inc, G.R. No. 135306, 396 SCRA 210, 252 n.18 (S.C., Jan. 28, 2003) (Phil.) (citing the decisions of the Supreme Court of Canada); Vivares v. St. Theresa’s Coll., G.R. No. 202666, 737 SCRA 92, 112 n.26 (S.C., Sept. 29, 2014) (Phil.) (citing the decision of the South African High Court). 211 344 U.S. 443, 540 (1953) (Jackson, J., concurring). 212 Morissette, 342 U.S. at 260 (“Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static.”).

213 Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 994 (2010). (“[Q]uestions of state criminal power occupy a great deal of the Constitution’s structure precisely because concentrated power in criminal matters was a danger of which the Framers were well aware. They feared the tyranny of majorities that would seek to oppress opponents through the use of criminal laws.”).

214 H. L. A. HART, THE CONCEPT OF LAW 33-35 (2d. ed., Clarendon Press, 1994) (1961) (“It might be said, […] that whereas rules like those of the criminal law imposes duty, power-conferring rules are recipes for creating duties. […] The first argument, designed to show the fundamental identity of the two sorts of rule and to exhibit both as coercive orders, fastens on the ‘nullity’ which ensues when some essential condition for the exercise of the power is not fulfilled. This . . . is like the punishment attached to criminal law. […] Th[is] argument […] show[s] the fundamental identity of power- conferring rules with coercive orders by widening the meaning of a sanction or threatened evil [or threats].”).

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But because the “social order depends on the widespread belief that the authorities, and their political and legal framework, are legitimate,”215 criminal laws must, themselves, hinge on what Morissette calls, “the general rule of law and the dictate of natural justice.”216 To do otherwise would be to deny the “inviolability”217 that each person possesses—an inviolability “founded on justice that even the welfare of society as a whole cannot override.”218 Rejecting the status quo is, therefore, a natural precondition to move forward as a truly “just and humane society”219 as the Constitution conceives—for “laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.”220

215 David J. Smith, The Foundations of Legitimacy, in LEGITIMACY AND CRIMINAL JUSTICE 30, 30 (Tom R. Tyler et al., eds., 2007); see also Niklas Luhmann, Soziologie des politischen Systems, in SOZIOLOGISCHE AUFKLÄRUNG 167 (1970), quoted in JÜRGEN HABERMAS, LEGITIMATION CRISIS 98 (Thomas MacCarthy trans., Heinemann 1980) (1973) (“The law of a society is positivized when the legitimacy of pure legality is recognized, that is, when law is respected because it is made by responsible decision in accordance with definite rules.”). 216 Morissette, 342 U.S. at 274, quoting People v. Flack, 125 N.Y. 324, 334 (1891).

217 JOHN RAWLS, A THEORY OF JUSTICE 3 (rev. ed., 1991).

218 Id. (emphasis added).

219 CONST. (1987), pmbl. (Phil.).

220 RAWLS, supra note 217, at 3.