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ANNOTATION
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I. Foreword, p. 483
II. The Case Under Annotation, p. 484
III. Crimes Mala In Se and Mala Prohibita, p. 486
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I. Foreword
For sometime now, we have not come across decisions of the Highest
Court of the land which dispose of a case on the basis of the deeper
seated theory of philosophy of the law. By the more recent adjudications
of the Supreme Court, legal philosophy had been relegated to the
background in favor of the narrower theories of stare decisis and malum
prohibitum.
For those who are inclined to legal philosophy, it is encouraging to
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note that eight (8) days before retiring from the judiciary, Mr. Justice
Edgardo L. Paras penned a decision showing his deep insight into legal
philosophy, and used the same as guiding principle in holding that an
apparent violation of Batas Pambansa Blg. 22 was not in fact so, blasting
the much reviled theory of malum prohibitum. We are referring to the
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case of Magno v. Court of Appeals, et al., decided on 26 June 1992.
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484
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jurisprudential wisdom, so much needed at this crucial stage of the
development of our jurisprudence.
For all intents and purposes, the law was devised to safeguard the interest of
the banking system and the legitimate public checking account user. It did not
intend to shelter or favor nor encourage users of the system to enrich themselves
through manipulations and circumvention of the noble purpose and objective of
the law. Least should it be used also as a means of jeopardizing honestto
goodness transactions with some color of getrich scheme to the prejudice of
wellmeaning businessmen who are the pillars of society.
3
Under the utilitarian theory, the protective theory in criminal law, affirms
that the primary function of punishment is the protecti(on) . . . of society against
actual and potential wrongdoers. x x x
Corollary to the above view, is the application of the theory that criminal law
is founded upon that moral disapprobation x x x of actions which are immoral,
i.e., which are detrimental (or dangerous) to those conditions upon which depend
the existence and progress of human society. This disapprobation is inevitable to
the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. x x x That which we call punishment is
only
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485
Clearly, the foregoing pronouncements went into the theory of crime and
punishment in their jurisprudential concepts, which were used by the
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4 Sps. Veroy v. Layague, etc., et al., G.R. No. 95630, June 18, 1992, 210 SCRA 97.
486
Thus, the much abused theory of malum prohibitumthat the only point
of inquiry in this kind of offense is, whether the law has been violated
was already clearly relegated to the background in favor of the
teleological idea of fairness and justice.
It must be recalled that in the en banc decision of the Supreme Court
5
in Lozano v. Martinez and its companion cases, the theory of malum
prohibitum was used to justify application of the punitive provisions of
B.P. 22, without regard to the circumstance of whether the check was
postdated (which is no different from a promissory note) or not, and
without looking into the nature of the transaction which gave rise to the
issuance of the check. Said case also enunciated the theory that the mere
act of issuing a bad check constitutes the crime itself (inspite of the clear
provision of the law that the check has to be dishonored and the drawer
given five banking days to make good the amount of the check after
notice of dishonor before indictment can be made). The Lozano doctrine
was indeed a haphazard ruling and its effect is a perversion of the
criminal process, because payees of dishonored checks are using the
threat of criminal sanction to enforce collections of their credits. About
thirty percent (30%) of the dockets of the courts in the metropolitan areas
are B.P. 22related cases, and what is worse, when several checks are
issued out of a single transaction, each check is the subject of a separate
indictment, so that the law, as interpreted, is spawning the clogging of
court dockets. This could not have been envisioned by the legislature in
enacting B.P. 22.
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Felonies are committed not only by deceit (dolo) but also by means of fault
(culpa).
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5 146 SCRA 323. The writer was one of the respondents in said cases because he
declared B.P. 22 unconstitutional.
487
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.
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488
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Without intelligence, necessary to determine the morality of human acts,
to distinguish a licit from an illicit act, no crime can exist, and because
the imbecile, the lunatic, and the infant have no intelligence, the law
8
exempts them from criminal liability.
Intentwhen there is no will there is no crime. He who is unwilling to
do a certain act and is compelled to do it by an irresistible force, whether
physical or moral, commits no crime. This is obvious. Where there is no
intelligence there is no will. An imbecile, a lunatic, a child, whatever the
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damage they may cause, are exempt from criminal liability.
There are crimes which, by the act alone, irrespective of its motives,
constitutes the offense punished by the statute. These are the crimes
mala prohibita, where in determining the existence of the crime, the only
inquiry is, has the law been violated? Whether or not in a given case a
statute is to be so construed is to be determined by the subject matter of
the prohibition, as well as the language of the statute and the intention
of the legislature.
The traditional concept of offense malum prohibitum is that the act is
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evil because it is prohibited. An offense malum prohibitum is an act
made wrong by legislationa forbidden evil. A wrong prohibited; a thing
which is wrong because prohibited; an act which is not inherently
immoral but becomes so because its commission is expressly forbidden by
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positive law; an act involving an illegality resulting from positive law.
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An offense not such of itself but because prohibited by statute. An
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illegal act because of the prohibition of the law.
In crimes mala in se, the intent governs but in those mala prohibita,
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the only inquiry is, has the law been violated? An offense malum
prohibitum is a type of crime wherein the intention of the person who
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commits it is entirely immaterial.
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489
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o0o
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490
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