DEFINITION

a. What is a Penal Law? What is a Special Penal Law?

Inmates of NBP v. de Lima; GR 212719/214637, June 25, 2019

FACTS:

Then late President Aquino signed into law RA No. 10592 amending certain articles of
the Revised Penal Code. Respondents DOJ Secretary De Lima, DILG Secretary Mar
Roxas, etc. issued an IRR relating to the same.

Then, various inmates filed a petition assailing the legality of Section 4, Rule 1 of the
IRR (re: Good Conduct Time Allowance) which states that the grant of good conduct
time allowance shall be prospective in application. Petitioners aver that it contravenes
Article 22 of the RPC which states that penal laws that are beneficial to the accused
shall have retroactive application.

Petitioners assert that Article 22 of the RPC applies because R.A. No. 10592 is a penal
law. They claim that said law has become an integral part of the RPC as the amended
Articles thereof.

They further argue that if an amendment to the RPC that makes the penalties more
onerous or prejudicial to the accused cannot be applied retroactively for being an ex
post facto law, a law that makes the penalties lighter should be considered penal laws in
accordance with Article 22 of the RPC.

ISSUE:

Whether or not the assailed provision of the IRR is invalid?

RULING:

Yes. Every new law has a prospective effect. Under Article 22 of the RPC, however, a
penal law that is favorable or advantageous to the accused shall be given retroactive
effect if he is not a habitual criminal. These are the rules, the exception, and the
exception to the exception on the effectivity of laws.

In criminal law, the principle favorabilia sunt amplianda adiosa restrigenda (penal laws

which are favorable to the accused are given retroactive effect) is well entrenched.

According to Mr. Chief Justice Manuel Araullo, the principle is "not as a right" of the
offender, "but founded on the very principles on which the right of the State to punish
and the commination of the penalty are based, and regards it not as an exception based
on political considerations, but as a rule founded on principles of strict justice."

Further, case law has shown that the rule on retroactivity under Article 22 of the RPC
applies to said Code and its amendments, as well as to special laws.
But what exactly is a penal law?

A penal provision or statute has been consistently defined by jurisprudence as follows:

A penal provision defines a crime or provides a punishment for one.

Penal laws and laws which, while not penal in nature, have provisions defining
offenses and prescribing penalties for their violation.

Properly speaking, a statute is penal when it imposes punishment for an offense

committed against the state which, under the Constitution, the Executive has the
power to pardon. In common use, however, this sense has been enlarged to include
within the term "penal statutes" all statutes which command or prohibit certain
acts, and establish penalties for their violation, and even those which, without
expressly prohibiting certain acts, impose a penalty upon their commission.

Penal laws are those acts of the Legislature which prohibit certain acts and
establish penalties for their violations; or those that define crimes, treat of their
nature, and provide for their punishment.

The "penal laws" mentioned in Article 22 of the RPC refer to substantive laws, not
procedural rules.
Moreover, the mere fact that a law contains penal provisions does not make it
penal in nature.

While R.A. No. 10592 does not define a crime/offense or provide/prescribe/establish a

penalty as it addresses the rehabilitation component of our correctional system, its
provisions have the purpose and effect of diminishing the punishment attached to
the crime. The further reduction on the length of the penalty of imprisonment is, in the
ultimate analysis, beneficial to the detention and convicted prisoners alike; hence, calls
for the application of Article 22 of the RPC.

The prospective application of the beneficial provisions of R.A. No. 10592 actually
works to the disadvantage of petitioners and those who are similarly situated. It
precludes the decrease in the penalty attached to their respective crimes and
lengthens their prison stay; thus, making more onerous the punishment for the
crimes they committed. Depriving them of time off to which they are justly entitled as a
practical matter results in extending their sentence and increasing their punishment.
Evidently, this transgresses the clear mandate of Article 22 of the RPC.

Petition granted.
b. Mala Prohibita vs. Mala In Se

ABS-CBN Corporation v. Gozon; GR 195956, March 11, 2015

FACTS:

ABS-CBN and Reuters Television Service entered into a special embargo agreement
that allowed Reuters to air the footages of the arrival of the kidnapped OFW originally
taken by ABS-CBN. Among their agreements are that it shall be for the exclusive use of
Reuters and no other Philippine subscriber of Reuters would be allowed to use ABS-
CBN’s without the latter’s consent.

Respondent GMA 7 is a subscriber of Reuters. It received the live video feed of the
OFW arrival and immediately carried the live newsfeed in its program.

GMA 7 asserts good faith. That it did not receive any notice or was not aware that
Reuters was airing footages of ABS-CBN.

ABS-CBN filed a complaint for copyright infringement under the Intellectual Property
Code. ABS-CBN claims that news footage is subject to copyright and prohibited use of
copyrighted material is punishable under the Intellectual Property Code. 

Respondents argue that copyright infringement is malum in se, in that "[c]opying alone is
not what is being prohibited, but its injurious effect which consists in the lifting from the
copyright owners' film or materials, that were the result of the latter's creativity, work and
productions and without authority, reproduced, sold and circulated for commercial use to
the detriment of the latter."

Prosecutor found probable cause and the Information was filed. Respondents filed a
Petition for Review before the DOJ. DOJ ruled in favour of respondents and held that
good faith may be raised as a defense. Petitioner filed for a Motion for Reconsideration.
DOJ reversed its initial decision.

CA ruled in favour of respondents. CA explained that 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 Properly
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. That the IP Code permits fair use of copyrighted work. 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.
ISSUE:

Whether or not good faith is a defense in a criminal prosecution for violation of the
Intellectual Property Code?

RULING:

NO. Infringement under the Intellectual Property Code is malum prohibitum. The

Intellectual Property Code is a special law. Copyright is a statutory creation.

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or
independent right granted by the statute, and not simply a pre-existing right regulated by
the statute. Being a statutory grant, the rights are only such as the statute confers, and
may be obtained and enjoyed only with respect to the subjects and by the persons, and
on terms and conditions specified in the statute.

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.”

In contrast, crimes mala in se concern inherently immoral acts:

Not every criminal act, however, involves moral turpitude. It is for this reason that "as to
what crime involves moral turpitude, is for the Supreme Court to determine". In resolving
the foregoing question, the Court is guided by one of the general rules that crimes mala
in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which
was set forth in "Zari v. Flores" to wit:

It (moral turpitude) implies something immoral in itself, regardless of the fact that it is
punishable by law or not.  It must not be merely mala prohibita, but the act itself must be
inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the
moral turpitude. 

Moral turpitude does not, however, include such acts as are not of themselves immoral
but whose illegality lies in their being positively prohibited.

[These] guidelines nonetheless proved short of providing a clear-cut solution, for

in International Rice Research Institute v. NLRC, the Court admitted that it cannot
always be ascertained whether moral turpitude does or does not exist by merely
classifying a crime as malum in se or as malum prohibitum. There are crimes which are
mala in se and yet but rarely involve moral turpitude and there are crimes which involve
moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statue.

"Implicit in the concept of mala in se is that of mens rea."

Mens rea is defined as "the nonphysical element which, combined with the act of
the accused, makes up the crime charged. Most frequently it is the criminal intent,
or the guilty mind[.]"

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:

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 penaltes, 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.

Unlike other jurisdictions that require intent for a 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.

In the Philippines, the Intellectual Property Code, as amended, provides for the
prosecution of criminal actions for the following violations of intellectual property
rights: Repetition of Infringement of Patent (Section 84); Utility Model (Section 108);
Industrial Design (Section 119); Trademark Infringement (Section 155 in relation to
Section 170); Unfair Competition (Section 168 in relation to Section 170); False
Designations of Origin, False Description or Representation (Section 169.1 in relation to
Section 170); infringement of copyright, moral rights, performers' rights, producers'
rights, and broadcasting rights (Section 177, 193, 203, 208 and 211 in relation to Section
217); and other violations of intellectual property rights as may be defined by law.

The Intellectual Property Code requires strict liability for copyright infringement
whether for a civil action or a criminal prosecution; it does not require mens
rea or culpa:
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
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."

The Intellectual Property Code is clear about the rights afforded to authors of various
kinds of work. Under the Code, "works are protected by the sole fact of their
creation, irrespective of their mode or form of expression, as well as of their content,
quality and purpose."79 These include "[audio-visual works and cinematographic works
and works produced by a process analogous to cinematography or any process for
making audiovisual recordings."

Arguments against strict liability presuppose that the Philippines has a social, historical,
and economic climate similar to those of Western jurisdictions. As it stands, there is a
current need to strengthen intellectual property protection.

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.

Nevertheless, proof beyond reasonable doubt is still the standard for criminal
prosecutions under the Intellectual Property Code.

Petition granted.
 Dungo v. People; GR 209464; July 1, 2015

FACTS:

Petitioners Dungo and Sibal, both accused, during a planned initiation rite and being
then members of a fraternity (APO) and present thereat, in conspiracy with more or less
twenty other members and officers, did then and there willfully, unlawfully and
feloniously assault and use personal violence upon one Marlon Villanueva, a neophyte
and as condition for his admission to the fraternity, thereby subjecting him to physical
harm, resulting to his death, to the damage and prejudice of the heirs of the victim.

The RTC found petitioners guilty of the crime of violating Section 4 of the Anti-Hazing
Law. The RTC explained that even if there was no evidence that Dungo and Sibal
participated to bodily assault and harm the victim, it was irrefutable that they brought
Villanueva to the resort for their final initiation rites. Clearly, they did not merely induce
Villanueva to attend the final initiation rites, but they also brought him to Villa Novaliches
Resort.

Aggrieved, the petitioners filed a notice of appeal. In their brief, they contended that the
prosecution failed to establish their guilt beyond reasonable doubt for violating R.A. No.
8049. They also assailed the constitutionality of Section 4 of the said law, which stated
that mere presence in the hazing was prima facie evidence of participation therein,
because it allegedly violated the constitutional presumption of innocence of the accused.

CA denied petitioner’s appeal. It further found that the defense of denial and alibi failed
to cast doubt on the positive identification made by the prosecution witnesses; and that
denial, being inherently weak, could not prevail over the positive identification of the
accused as the perpetrators of the crime. The CA also stated that Dungo and Sibal were
not only convicted based on their presence in the venue of the hazing, but also in their
act of bringing the victim to Villa Novaliches Resort for the final initiation rites.

Petitioners Dungo and Sibal argue that the amended information charged them as they
"did then and there willfully, unlawfully and feloniously assault and use personal violence
upon one Marlon Villanueva y Mejilla." Yet, both the RTC and the CA found them guilty
of violating R.A. No. 8049 because they "[i]nduced the victim to be present" during the
initiation rites. The crime of hazing by inducement does not necessarily include the
criminal charge of hazing by actual participation. Thus, they cannot be convicted of a
crime not stated or necessarily included in the information. By reason of the foregoing,
the petitioners contend that their constitutional right to be informed of the nature and
cause of accusation against them has been violated.

OSG in its Comment said that the planned initiation rite would not have been
accomplished were it not for the acts of the petitioners in inducing the victim to be
present thereat and it was obviously conducted in conspiracy with the others.
ISSUE:

Whether or not judgments of the RTC and the CA constitute a violation of the
constitutional right of the accused to be informed of the nature and cause of accusation
against them because the offense proved, as found and pronounced, is different from
that charged in the information, nor does one include or necessarily include the other.

Whether or not violation of Anti-Hazing law is mala in se or

mala prohibita?
RULING:

NO.

Anti-Hazing Law in the Philippines

R.A. No. 8049, or the Anti-Hazing Law .of 1995, has been enacted to regulate hazing
and other forms of initiation rites in fraternities, sororities, and other organizations. It was
in response to the rising incidents of death of hazing victims.

Criminal law has long divided crimes into acts wrong in themselves called acts mala in
se; and acts which would not be wrong but for the fact that positive law forbids
them, called acts mala prohibita.

This distinction is important with reference to the intent with which a wrongful act
is done.

The rule on the subject is that in acts mala in se, the intent governs; but in acts mala
prohibita, the only inquiry is, has the law been violated?

When an act is illegal, the intent of the offender is immaterial.

When the doing of an act is prohibited by law, it is considered injurious to public
welfare, and the doing of the prohibited act is the crime itself.

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

The better approach to distinguish between mala in se and mala prohibita crimes
is the determination of the inherent immorality or vileness of the penalized act.

If the punishable act or omission is immoral in itself, then it is a crime mala in se.
On the contrary, if it is not immoral in itself, but there is a statute prohibiting its
commission by reasons of public policy, then it is mala prohibita.

In the final analysis, whether or not a crime involves moral turpitude is ultimately a
question of fact and frequently depends on all the circumstances surrounding the
violation of the statute.

The crime of hazing under R.A. No. 8049 is malum prohibitum. 

The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and
robust in penalizing the crime of hazing.

It was made malum prohibitum to discount criminal intent and disallow the
defense of good faith. It took into consideration the different participants and
contributors in the hazing activities. While not all acts cited in the law are penalized, the
penalties imposed therein involve various and serious terms of imprisonment to
discourage would-be offenders. Indeed, the law against hazing is ideal and profound. As
to whether the law can be effectively implemented, the Court begs to continue on the
merits of the case.

Aside from inducing Villanueva to attend the initiation rites and their presence during the
hazing, the petitioners’ guilt was proven beyond reasonable doubt by the sequence of
circumstantial evidence presented by the prosecution. Their involvement in the hazing of
Villanueva is not merely based on prima facie evidence but was also established by
circumstantial evidence.

Petition denied.