“DO you swear to tell the truth, the whole truth, and nothing but the truth?” The moment you answer, “I do,” then you have effectively taken an oath under pain and penalty of perjury.
The congressional Commission on Appointments on March 8 rejected the ad interim appointment of Foreign Affairs Secretary Perfecto R. Yasay Jr. The committee on foreign affairs headed by Senator Panfilo Lacson unanimously voted to reject Yasay’s appointment on the ground that “he lied under oath.”
Lacson likewise added that Yasay could be charged with perjury for “lying”. However, according to news reports, the CA is not inclined to press any charges against him.
On another front, the Senate committee on public order had opened and shut on the same day its probe relative to the revelations of retired SPO3 Arturo Lascañas. Lacson, who chairs the committee, said that the latter would recommend the filing of a perjury case against Lascañas. Again, for “lying” before the Senate.
The crime of perjury
Black’s Law Dictionary defines perjury as “the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding.”
There are two major elements here that need clarification – matter of fact and judicial proceeding.
A material fact is a fact that would be important to the decision to be made as distinguished from an insignificant, trivial or unimportant detail. In other words, it is a fact which expression (or concealment) would most probably result in a different decision. For example, if you lied about your age and age has nothing to do with the subject at hand, then it is not material. However, if the subject at hand deals with retirement benefits, for example, then age is important and material.
Judicial proceeding is defined as “procedurals and hearings before a court, or a tribunal or administrative board that performs a judicial function.” As to whether or not a forum is a judicial proceeding, the case of Trapp vs. Mackie (1 WLR 377) is worth revisiting –
“So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts; secondly, the nature of the question into which it is its duty to inquire; thirdly, the procedure adopted by it in carrying out the inquiry; and fourthly, the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.”
Perjury in the Philippines
The crime of perjury is punished here in the Philippines in accordance with the proviso of Article 183 of the Revised Penal Code (RPC). Further, it must be identified and taken in relation to Articles 180-182 of the RPC.
Article 183 of the RPC is as follows –
“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 makes untruthful statements and not being included in the provisions 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.;
“Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein.”
Article 180 penalizes giving false testimony against the defendant in any criminal case while Article 181 punishes offering false testimony in favor of the defendant. On the other hand, Article 182 deals with persons found guilty of false testimony in a civil case.
Article 183 in fact refers to either of two punishable acts: 1) falsely testifying under oath in a proceeding other than a criminal or civil case; and 2) making a false affidavit before a person authorized to administer an oath on any material matter where the law requires an oath.
Can Lascañas and Yasay be charged with perjury?
Let us now go back to the cases of Yasay and Lascañas. Basing it on applicable criminal law, can they be charged with the crime of perjury?
There are four elements that must be present for one to be charged of the crime of perjury (Diaz v. People, G.R. No. 65006, 1990). These are as follows:
a. That the accused made a statement under oath or executed an affidavit upon a material matter.
b. That the statement or affidavit was made before a competent officer, authorized to receive and administer
c. That in the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood.
d. That the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.
My insight tells me that they may be charged with the crime of perjury. Are they guilty of perjury? Well, that is an entirely different story and I will not answer that.
Yasay testified before the confirmation hearings of the CA. Confirmation hearings of the CA are a proceeding other than a criminal or civil case. Before testifying, Yasay took an oath “to tell the truth, the whole truth, and nothing but the truth.” It is evident that Yasay took an oath and testified before the CA in a proceeding other than a criminal or civil case. Did he make a willful and deliberate assertion of a falsehood? I do not know. It is only the courts which can decide whether or not he falsely testified.
Lascañas executed an affidavit and had it notarized before a competent authority. Clearly, this falls within the ambit of the second punishable act—making an affidavit before a person authorized to administer an oath. The question that lingers now is whether or not the said affidavit is false. If the affidavit is false, then he can be charged with perjury. On the other hand, if the affidavit is true, then there is no crime committed.
Willful and deliberate assertion of a falsehood
In any perjury case, the third element of the crime—willful and deliberate assertion of falsehood—is essential but very difficult to prove.
Perjury being a felony by dolo, there must be malice on the part of the accused. Willfully means intentionally, with evil intent and legal malice, with consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to knowingly.
Deliberately implies meditated as distinguished from inadvertent acts. It must appear that the accused knows his statement to be false or is consciously ignorant of its truth.
In Acuav. Deputy Ombudsman for Luzon (G.R. No. 144692,2005), the Supreme Court held that good faith or lack of malice is a valid defense vis-a-vis the allegation of deliberate assertion of falsehood in perjury cases.
Thus, a mere assertion of a false objective fact or a falsehood is not enough. The assertion must be deliberate and willful.
In the end, Yasay and Lascañas can claim that they believed in good faith that their statements in their testimony and affidavit, respectively, were true and correct.