VOL.

249, OCTOBER 25, 1995

511

The Crime of Perjury (Its Concept Under Philippine Law)

ANNOTATION

THE CRIME OF PERJURY (Its Concept Under Philippine Law)

By
DAVID G. NITAFAN*

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§ 1.Preliminary statement, p. 511

§ 2.Concept of perjury under American law, p. 512
§ 3.History of perjury laws in the Philippines, p. 513
§ 4.Analysis of the changes in the law, p. 515
§ 5.Present concept of perjury, p. 516
———————

§ 1. Preliminary statement
In a recent decision of the Supreme Court in an administrative case,1
there is a passage which reads:

“*** Under Article 183 of the Revised Penal Code, perjury is the
deliberate making of an untruthful statement upon any material
matter before a competent person authorized to administer oath in
cases in which the law so requires. The required Civil Service Form
212 submitted by the respondent to form part of her personal file is
an official document. Her deliberate omission to disclose her child
without a valid justification makes her liable for perjury.”

The above-quoted portion of the decision seems to show (a) the

pervading confusion as to the concept of the crime of perjury under
existing Philippine penal law, and (b) that perjury may also be
committed by omission.

________________

* RTC Judge and Professor of Law.

1 Burgos v. Aquino, A.M. No. P-94-1081, 25 October 1995—Puno, J.

It is the purpose of this piece to make a deeper study of the subject
crime in both its above aspects.

§ 2. Concept of perjury under American law

Two early cases of perjury were decided by the Supreme Court, one
in 1910 and the other in 1915.2 In the first case, the following excerpts
appear:

“By the common law perjury is the willful and corrupt taking of a
false oath, lawfully administered in a judicial proceeding or the
course of justice in regard to a matter material to the issue or point of
inquiry. (30 Cyc., 1399, and cases cited therein.)

“This definition of perjury, as modified by statute, may be more

accurately defined to be the willful and corrupt assertion of a
falsehood, under oath or affirmation administered by authority of
law, in a material matter, the offense being enlarged and made to
extend to other false oaths than those taken in the course of judicial
proceedings. (30 Cyc., 1400, and cases cited.)3

The foregoing quotations were reiterated in the second case, but in

addition Wharton was quoted in the latter decision:

“Wharton, in his work on Criminal Law (11th ed., vol. 2, sec. 1508),
says: ‘Perjury, as the offense, modified by statute, is now generally
defined, is the corrupt assertion of a falsehood, under oath, or
affirmation, and by legal authority, for the purpose of influencing the
course of law. Or, to give a definition drawn from the older common-
law authorities, it is 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.”4

______________

2 U.S. v. Estraña, 16 Phil. 520 and U.S. v. Cañet, 30 Phil. 371.

3 16 Phil., at 529-530.

4 30 Phil., at 379.
According to some writers on American Criminal Law, the elements
of perjury as known in that jurisdiction are: (1) that the intention
must be willful; (2) the oath (or affirmation) must be false; (3) that the
proceeding must be judicial, or its equivalent; (4) that the assertion
must be absolute; and (5) that the oath must be material to the
question at issue.5

§ 3. History of perjury laws in the Philippines

Prior to the advent of American sovereignty in the Philippines, the
law on perjury was contained in Article 318, et seq. of the old Penal
Code. Perjury was, under this old code, known as false swearing
(falso testimonio)or false testimony.

On 10 November 1906, Act No. 1562, entitled AN ACT TO PREVENT

THE FAILURE OF MILITARY JUSTICE, TO AUTHORIZE THE
SWEARING OF WITNESSES BEFORE A MILITARY
INVESTIGATION, AND TO PUNISH PERJURIES THEREIN
COMMITTED, was enacted and took effect. Section 2 of this law
provided:

“Any witness so testifying, who shall willfully, corruptly, and falsely

testify to any material fact relative to such investigation shall be
guilty of perjury, and upon conviction thereof shall be punished with
a penalty of arresto mayor in its maximum degree to presidio
correccional in its medium degree and a fine of from six hundred and
twenty-five pesetas to six thousand two hundred and fifty
pesetas.”5a

On 23 August 1907, Act No. 1697, entitled AN ACT AUTHORIZING

THE APPOINTMENT OF COMMISSIONERS TO MAKE OFFICIAL
INVESTIGATIONS AND FIXING THEIR POWERS, FOR THE
PAYMENT OF WITNESS FEES, AND FOR THE PUNISHMENT OF
PERJURY IN OFFICIAL INVESTIGATIONS, was enacted and
became effective. Sections 3 and 4 of this law provided:

______________

5 See Bouvier’s Law Dictionary, pp. 2566-2567.

5a The statement in U.S. v. Concepcion (13 Phil. 424, 428-429), that

there was no law on perjury prior to Act No. 1697, seems to be
inaccurate because of Act No. 1562.

“Any person who, having taken an oath before a competent tribunal,

officer, or person, in any case in which a law of the Philippine Islands
authorizes an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony, declaration,
deposition, or certificate by him subscribed is true, willfully and
contrary to such oath states or subscribes any material matter which
he does not believe to be true, is guilty of perjury, and shall be
punished by a fine of not more than two thousand pesos and by
imprisonment for not more than five years; and shall, moreover,
thereafter be incapable of holding any public office or of giving
testimony in any court of the Philippine Islands until such time as the
judgment against him is reversed.”

“Any person who causes or procures another person to commit

perjury as defined in the preceding section is guilty of subornation of
perjury and shall be punished as in said section prescribed.”

This act expressly repealed Section 2 of Act No. 1562 earlier quoted,6
and, according to the Supreme Court, also that of Article 318, et seq.
of the Penal Code.7

When the Penal Code was revised in 1930, which gave rise to the
enactment of the Revised Penal Code,8 a section entitled “false
testimony” was included under Chapter Two referring to “Other
Falsities” in Book Two of the revised code. Five articles compose this
section on false testimony, namely: Art. 180 (False testimony against
a defendant), Art. 181 (False testimony favorable to the defendant),
Art. 182 (False testimony in civil cases), Art. 183 (False testimony in
other cases and perjury in solemn affirmation), and Art. 184 (Offering
false testimony in evidence).

Specifically, Article 183 of the Revised Penal Code reads as follows:

“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 provisions of the next preceding articles, shall testify
under oath,

________________

6 Sec. 5, Act No. 1697.

7 U.S. v. Estraña, supra, 16 Phil., at 527.

8 Act No. 3815, approved 8 December 1930, but which took effect on
1 January 1932 per its Article 1.
or make an affidavit, upon any material matter before a competent
person authorized to administer oath in cases in which the law so
requires.

“Any person who, in case of 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.”

§ 4. Analysis of the changes in the law

While the old penal code refers to the falsities sought to be punished
as false testimony, both Acts Nos. 1562 and 1697 called itperjury.

According to Justice Trent, there is a distinction between perjury and

false swearing; the one is stubborn and corrupt while the other is
simply not true, lacking the elements which go to constitute the crime
of perjury.9

The decision in U.S. v. Estraña, supra, traced the origin of Section 3 of

Act No. 1697 to Section 5392 of the Revised Statutes of the United
States,10 and then concluded:

“The essential parts of this section (5392) and Section 3 of Act No.
1697 are essentially the same. It is also true that Section 3 of our
perjury law is practically the same as that of nearly all of the States of
the Union wherein materiality is made, by statute, an element of the
crime.”

It is thus evident that the crime of perjury punished under Act No.
1697 was the American concept of the offense.

On the other hand, analyzing an earlier decision, the Supreme Court

held that the provisions of the Penal Code relating to perjury covered
cases only which arose in court and in some contentious
proceedings.11

_____________

9 U.S. v. Estraña, supra, 16 Phil. 531, citing Miller v. State, 15 Fla. 577.

10 The decision quoted said section of the Revised Statutes, 16 Phil.,

at 531; see also U.S. v. Concepcion, 13 Phil. 424, 428.

11 U.S. v. Concepcion, supra, 13 Phil., at 428, citing U.S. v. Gutierrez,

7 O.G. 322, 12 Phil. 529.
§ 5. Present concept of perjury
When the Revised Penal Code again placed perjury under the section
on “false testimony,” per Article 183 thereof, it is assumed that such
offense reverted to the Spanish concept, i.e., that it may arise only in
court cases and in some other contentious proceedings, in fact as per
its title, said article consists of two parts: “False testimony in other
cases” AND “perjury in solemn affirmation.” The Revised Penal
Code endowed it with a new concept—that it may arise only in court
cases and in some contentious proceedings wherein the testimony or
statement was made on solemn affirmation in lieu of an oath.

As already seen, Article 183 of the Revised Penal Code is not only
entitled “False testimony in other cases and perjury in solemn
affirmation” but it also consists of two paragraphs. “False testimony
in other cases” are those committed by persons who, knowingly
making untruthful statements and not being included in the
provisions of the . . . preceding articles,” who “testify under oath, or
make an affidavit, upon any material matter before a competent
person authorized to administer oath in which the law so requires.”
(1st par.)

On the other hand, “perjury” is committed by “any person who, in

cases of 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,” as referred to in the second paragraph of the article.

Thus, there is perjury if false testimony is given against a defendant

in any criminal case (Art. 180), or false testimony is given favorable to
a defendant in a criminal case (Art. 181), or false testimony is given in
a civil case (Art. 182), or false testimony is given in other cases (Art.
183, 1st par), and that any of such testimonies are given in solemn
affirmation made in lieu of an oath. (Art. 183, 2nd par.).

Unlike under the American concept wherein perjury may be

committed when testimony is given either under oath or in solemn
affirmation, the Revised Penal Code concept of perjury is committed
only “in solemn affirmation made in lieu of an oath.”

False testimony in other cases is committed by the making of

untruthful statements and not included in Articles 180, 181 and

182, whereas perjury is committed by making untruthful statements

in the same manner as provided for in Articles 180, 181, 182 and in
the 1st paragraph of Article 183, and such falsity is made in solemn
affirmation in lieu of an oath.
In this connection, the 1916 Administrative Code (Act No. 2657) and
later the Revised Administrative Code of 1917 (Act No. 2711),
authorized acceptance of solemn affirmation in lieu of an oath, as
follows:

“Solemn affirmation shall in all cases be accepted in lieu of oath if the

person of whom an oath is required is conscientiously scrupulous
about taking an oath.”12

This legal provision was already in force when the Revised Penal
Code was enacted, and this must have been the reason why the
members of the Penal Code Revision Committee had so expressly
provided in the second paragraph of Article 183 that criminal liability
is also incurred by any person who commit the falsities punished
under Articles 180, 181, 182 and the first paragraph of Article 183, if
those were committed in solemn affirmation in lieu of an oath, and
they called the felony “perjury.”

We are not unaware of my decisions rendered after the effectivity of

the Revised Penal Code and repeal of “knowingly making untruthful
statements.” In respect to Articles 180, 181, and 182, there is no such
similar terminology used, but such fact must be part of the criminal
intent, and the modes of commission under said articles imply
criminal intent. False testimonies are obviously dolo felonies which
are committed with deliberate intent.13

3. Materiality.—If the falsity is committed through any of the means

provided in Articles 180, 181 and 182 of the Revised Penal Code, it
would appear that “materiality” is not an essential element of the
felony. The decision of the Supreme Court of Spain dated January 4,
1904, states that false testimony is punished not because of the effect
it actually produces, but because of its tendency to favor or to
prejudice the defendant. In a case under

______________

12 Sec. 18, Act No. 2657; Sec. 20, Act No. 2711.

13 See Art. 3, Revised Penal Code.

Article 180, it was said that whether the defendants were convicted or
acquitted is of no moment, it being a matter of pure coincidence.14
Under Article 181, false testimony in favor of the defendant need not
benefit him.15 In one case, the Court of Appeals held that falsehood
is ever reprehensible, but it is particularly odious when committed in
judicial proceedings, as it constitutes an imposition upon the court
and seriously exposes it to a miscarriage of justice.16

If we consider the rationale of the foregoing rulings as determinative

of whether or not materiality is essential, then we can conclude,
without running the risk of inaccuracy, that materiality is not
essential to the crime of perjury committed in the manners provided
for in Articles 180, 181 and 182 of the Revised Penal Code.

It is entirely a different matter if we consider the question in the light

of the first paragraph of Article 183. The provision itself expressly
provides that the falsity must be “upon any material matter.” Under
this part of the law, if the false testimony is not important, essential
or material to the matter under inquiry, there is no perjury.17 The
fact that the false testimony impertinent to the case is not enough.18

In this connection, the matter is “material” when it is directed to

prove (or disprove) a fact in issue.19

To which must the false matter be material? U.S. v. Jurado, supra,

answers this question, by holding that the false matter must be
“material to the principal matter under investigation.” In this case the
Court held:

“In order that a witness, in testifying under oath (solemn affirmation)

before a public official authorized to administer same commit the
crime of perjury and incur the penalty prescribed . . . . ., it is
necessary

____________

14 People v. Maneja, 72 Phil. 256, 258.

15 U.S. v. Adolfo, 12 Phil. 296.

16 People v. Reyes (CA), 48 O.G. 1837.

17 U.S. v. Jurado, 31 Phil. 491.

18 People v. Capinlac, 64 Phil. 442.

19 Wigmore on Evidence, p. 37.

and indispensable that he testify to and declare . . . . with regard to

some material matter which he does not believe to be true, or that
such false testimony tend to establish something which conflicts with
the truth of an essential or important fact which has been proven by
the evidence; because if the false testimony of the witness is not
important, essential or material to the principal matter under
investigation, it cannot properly be held that the crime of perjury has
been committed.”20

While this case was decided under the provisions of Act No. 1697, the
aspect of materiality in perjury cases required under said law was
carried over to the Revised Penal Code and, therefore, the ruling on
such aspect of said case is still good under the present perjury law.

Existence of an inquiry.—In relation to materiality, the question

arises: must the falsity refer to a material fact subject of an ongoing
inquiry? To the considered opinion of the writer, this question must
be answered in the affirmative.

Articles 180, 181 and 182 of the Revised Penal Code undoubtedly
concern pending cases for there could be no “defendant” nor “civil
case” to speak of if there is no pending proceedings. Considering that
Article 183 falls under the section on “false testimony” and uses the
phrase “shall testify under oath,” then what it contemplates is an
offense kindred to those referred to in the preceding three articles.
Thus, the phrase “or make an affidavit,” necessarily refers to an
affidavit or statement in an ongoing inquiry; otherwise, there is no
way of ascertaining the materiality of any false statement embodied
therein to a matter or issue under inquiry. Without a commenced
proceeding, there are as yet no matters under inquiry, and there are
as yet no issues to be resolved. It would then be impossible to
determine the materiality of a false assertion to the matter in issue.

Thus, if the falsity is embodied in an initiatory pleading, such as in a

verified complaint in a civil, administrative, or criminal case, there
can as yet no “false testimony” in a pending or ongoing inquiry. Such
pleading is precisely intended to commence the proceeding. It is the
reiteration of the false assertion during the inquiry which is an
offense, not its falsity in the initiatory pleading.

_____________

20 31 Phil., at 492-493; italics supplied.

To punish falsities in the complaint or initiatory pleading would

dissuade civic-minded persons to complain against others, specially
public officials, whom they believe have infringed on their rights.
Paraphrasing Mr. Justice Malcolm, while the doctrine of privileged
communications is liable to be abused, and its abuse may lead to
great hardships, yet to give legal sanctions to complaints would give
rise to far greater hardships.21 Indeed, a false complaint may, after
all, be withdrawn by the complainant before any actual proceeding
thereon is commenced, and this may result to the defense of good
faith.22

The foregoing discussions, we submit, render the opinions embodied

in decisions holding that falsities contained in affidavits not required
to be or submitted in ongoing inquiries was perjury23 seriously
flawed, so they need re-examination. In the same manner, the
validity of the opinion of writers considering execution of false
affidavits which have no relation to a pending inquiry as perjury
seriously doubted. Mere execution of an affidavit without it being
used in a legal inquiry, is not perjury. This was the thrust of both
Acts Nos. 1562 and 1697, the concepts of which were clearly carried
over to the Revised Penal Code.

6. Oath (and affirmation in lieu thereof) must be required by law.—

The first paragraph of Article 183 of the Revised Penal Code uses the
phrase “oath in cases in which the law so requires.” If there is no
requirement of law to place the statement or testimony under oath—
solemn affirmation is taken in lieu of said oath pursuant to Sec. 20 of
the Revised Administrative Code—there is no perjury. In perjuries
committed through the modes specified in Articles 180, 181, and 182
of the Revised Penal Code, the objective of the inquiries is the
ascertainment of truth of the matter under inquiry, so much so that
before a witness testifies

______________

21 Santiago v. Calvo, 48 Phil. 919, 923, citing Abbott v. National Bank

of Commerce, 175 U.S. 409.

22 See People v. Abaya, 74 Phil. 59; also People v. Ambal, 69 Phil. 710.

23 E.G., People v. Cabrero, 61 Phil. 121; People v. Cruz, 108 Phil. 255;
also the case under annotation.

or makes a declaration therein, he must be placed on oath to tell only

the truth. Also under the Rules on Summary Procedure, the sworn
affidavits of witnesses to support the position papers of the parties in
the case. If the affiants do not take the oath but instead declare in
solemn affirmation in lieu of an oath, and the assertions therein are
found to be false, then perjury is committed.

7. Falsity must be willful and deliberate.—According to one author,

the assertion of falsehood must be willful and deliberate, so that
perjury cannot be committed through negligence or imprudence.24
This is of court part of criminal intent, for if the declarant or witness
is not aware of the true facts he cannot be said to have falsely testified
or declared.

The case under annotation considered the “omission” to reveal the

birth of a child as a single mother perjury. It is submitted that this is
not accurate. Perjury cannot be committed by omission. It is not
among the felonies that can be committed by omission, as that term is
used in Article 3 of the Revised Penal Code. Willfulness and
deliberateness precludes omission.

Without intending to be pretentious and oficious it hoped that this

article will be an eye-opener to the entire legal profession.

——o0o——