April 30, 2016

#BangkoSerye: Bakit Affidavit? Duterte and Trillanes, Libel and Perjury

In yesterday’s article, ThinkingPinoy theorized why Duterte insists on an affidavit from Trillanes and why Trillanes insists on not executing one. Hindi ba pwedeng mag waive na lang agad para tapos na? But then, on the flip side, executing an affidavit isn’t very difficult, so TP doesn’t understand why Trillanes won’t do it either.

In this article, I will expound on the affidavit issue and try to discover its potential significance. But first, let me quote a part of the previous article to give the readers a quick rundown of what’s TP has discussed so far:

Libel versus Perjury

Investigating further, however, it appears that there’s a reason behind it for both parties. But before I explain, let me clarify that it’s over if Trillanes accusations are true, i.e. that affidavit won’t matter.

Thus, for the sake of argument, let’s assume for the moment that his accusations are false.

With no sworn affidavit, the best that Duterte can do is sue Trillanes for libel. With an affidavit, Duterte can sue Trillanes for perjury.

Now the question is... what’s the difference?

Scenario A: If Duterte sues Trillanes for libel

There are 4 essential elements of libel [SC GR 172203]
  • The imputation must be defamatory
  • The imputation must be made publicly
  • The person defamed must be identifiable
  • The imputation must be malicious
In a prospective Duterte vs. Trillanes libel case, the first three elements are easily met. The fourth element, however, is a bit tricky. The law presumes malice is present in every defamatory imputation [AbogadoMo], however, this does not exactly apply if the plaintiff is a public official or public figure which, in this case, is Duterte.

For libel cases where plaintiffs are public officials, the law requires the prosecution to prove actual malice, or “[Trillanes] must have known that the speech was false, or he must have been recklessly indifferent to its truth or falsity [SC GR 128959]”.

But this may easily be denied by Trillanes because he regularly points to his “secret sources”. That is, Trillanes may say that the accusations are true to the best of his knowledge, even if they are, in fact, false.

In short, Trillanes will most likely be acquitted if sued for libel.

Scenario B: If Duterte sues Trillanes for perjury

Meanwhile, the 4 essential elements of perjury are [SC GR 192565]:
  1. That the accused made a statement under oath or executed an affidavit upon a material matter.
  2. That the statement or affidavit was made before a competent officer, authorized to receive and administer oath.
  3. That the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.
  4. That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood.
The first three elements are a given, as we have assumed the execution of Trillanes affidavit, with the legal purpose being the verification of bank transactions. Now, we have earlier assumed, for the sake of argument, that Trillanes’ accusations are false, so that may automatically trigger the fourth element.

Basically, it’s a lot easier for Duterte to send Trillanes to prison if the charge is perjury. But then again, this assumes that Trillanes’ accusations are false. What TP does not understand, however, is why Trillanes remains stubborn despite his claim that his accusations are verified and true.

Prison Sentences

Now, let’s continue the discussion.

Trillanes will have too many easy and convenient defenses if faced with a libel charge, especially since our libel laws general favor freedom of the press.

On the other hand,  Trillanes will almost certainly be convicted for perjury. That is, aside from another conviction for violation the Bank Secrecy Law, which is already a given.

A violation of the Bank Secrecy Law is punishable by imprisonment of up to five years, a fine, or both, i.e. imprisonment from 0 to 5 years [LawPhil]. But we are not talking about that right now. Instead, let’s talk about perjury and libel.

Before we go further, let's have a recap of potential prison sentences:
  1. Libel is punishable by prision correccional, i.e. imprisonment from 6 months to 4 years [Chan-Robles Law].
  2. Perjury is punishable by arresto mayor in its maximum period to prision correccional in its minimum period, i.e. imprisonment from 6 months to 2 years [Chan-Robles Law].

ThinkingPinoy observed that in terms of prison sentences, perjury is actually a “lighter” accusation than libel. Well, I guess it’s better to sue Trillanes for a “lighter” accusation that’s easier to prove.

So again, parang may kulang.

Is that it? Wala na bang iba?

From ThinkingPinoy’s knowledge about Duterte’s character, TP believes he is not the kind of guy with an unbridled thirst for power.

He has repeatedly refused to take national positions for decades. Former President Ramos offered the DILG while former President Estrada offered the Bureau of Customs. He denied both of them [GMANews]. In 2012, he also refused to take the DILG post after Jesse Robredo died [Inquirer], a post that the Malacañang’s Balay (LP-Roxas group) and Samar (Ochoa-Binay group) factions are fighting over [Inquirer].

That is, for better or for worse, Duterte uses power only when the need arises.

Hence, the question: What kind of power will Duterte gain from Trillanes’ affidavit? More convenient litigation is a given, but is there something else?

Kahit may dilang pansanggano si Duterte, hindi siya mababaw at hindi siya tatanga-tanga.

Hence, ThinkingPinoy asks the question: What happens if Trillanes gets convicted for perjury?

Consquences of a Perjury Conviction

Let's take a look at the Rules of Court.

Here is an excerpt of Part IV, Rule 132, Section 11 of the Rules of Court (Revised Rules on Evidence) [LawPhil]:

Impeachment of adverse party's witness. — A witness may be impeached… by evidence that his general reputation for truth, honestly, or integrity is bad… but not by evidence of particular wrongful acts, except that it may be shown… or the record of the judgment, that he has been convicted of an offense.”

From the excerpt above, the credibility of witness can be destroyed by at least two methods:

  1. Evidence that the witness is a liar in general
  2. Evidence of a particular act PLUS conviction for that act.

The first method is tricky: it’s quite difficult to prove. However, the second method can easily be done of Trillanes has a prior conviction for perjury.

Hence, if we assume Trillanes gets convicted for perjury, his words will hold very little legal weight, should he decide to do another “expose” in the future.

In simple terms, Duterte’s insistence on an affidavit essentially means:

“Ok, Trillanes, sige, pagbibigyan kita diyan sa chimis mo, pero sisiguraduhin kong last mo na ‘yan.”

But then again, this assumes that Trillanes' accusations are false, which we will find out on Monday.

Final Note

Let’s summarize what we’ve talked about:

  1. If Trillanes is lying and he executes an affidavit, his public life is over, at the least.
  2. However if he’s telling the truth, he has nothing to fear.
So, Senator Trillanes, pirma na! Now na! (TP)

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