Moving Forward from the Historically Incongruous Treatment of Mens Rea in Philippine Criminal Law 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 Philippines. 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 92 Asian-Pacific Law & Policy Journal [Vol. 20:3 Distraught at a sentence 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.