Criminal Implications of Perjury
An Examination of the UAE Penal Code
Perjury, the crime of lying under oath, is an offence that derails the fundamental goal of the justice system – the discovery of the truth. Even some notable and influential entities have not been exempt to the consequences of perjury, which include prosecution, prison, and impeachment.
Since time immemorial, perjury has been defined as the act of lying while testifying in court. A witness under oath commits perjury when they make a statement, either in court or in other proceedings, that the witness knows not to be true. It is required that said witness' statement be "material" to the subject of the proceedings; this means that it must bear a direct relationship to the lawsuit or inquiry at hand. There are a handful of elements that are essential to the crux of perjury – these shall be briefly delineated. Firstly, it must be noted that perjury only happens under oath; the witness must have vowed to state the truth to an individual authorized to administer the oath, such as a public prosecutor or judge. Secondly, only false statements, issued with the intent to mislead, constitute perjury – false testimony that is the result of confusion, or a lapse of memory is not. Thirdly, it must be noted that inconsistent statements that are of consequence to the proceedings, can also be perjurious; this is because a witness’ testimony is viewed as a whole. Inconsistency under oath is famously what resulted in the impeachment of Bill Clinton. Causing, or instigating others to commit perjury also constitutes a criminal offence – this act is called suborning perjury.
Let us suppose that Mr A lends Mr Z some money. Mr Z repays it in full. Mr A, however, brings an action against Mr Z for the money, and in his declaration, asseverates that he lent the money, which was never repaid. At the trial, Mr A's receipt is produced. Except for Mr Z, not a single soul suspects that Mr A resorted to falsehood in his declaration. Is it fair that he enjoy impunity?
Let us also consider this: Mr Z brings an action against Mr A for a debt which is, in reality, overdue. Mr A's plea positively avers that he owes Z nothing. The case comes to trial, and an overwhelming wall of evidence shows that the debt is a just debt. Mr A does not move to attempt a defence. Is it fair that he enjoy impunity?
If, in either of the cases mentioned above, Mr A were to suborn witnesses to corroborate the lie that he issued on the pleadings, each one of these witnesses, in addition to Mr A, would be liable to severe punishment. However, as noted by the Supreme Court of India in Swaran Singh v. State of Punjab in 2000, perjury has become a way of life in courts.
In saying so, the Supreme Court noted that "a trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint.....”
Section 209 of the Indian Penal Code and its treatment of Perjury
The fact of the matter is that courts are often reluctant to order prosecution, and this subsequently encourages frivolous litigants to put forth false averments in pleadings before the court. In India, Section 209 of the Penal Code is supposed to act as an effective regulatory mechanism to impose checks and balances on frivolous litigators, but it has been seldom invoked.
Section 209 states in no uncertain terms that dishonestly making a false claim in a Court is an offence punishable by imprisonment up to two years, and by heavy sanctioning. Section 209 also delineates what constitutes an offence in this regard; (i) the accused should have made a claim; (ii) the claim should have been made in a court of justice; (iii)the claim should bear falsity, either wholly or in part; (iv) the accused must be cognizant of his claim being false; and finally, (v) the claim should have been made fraudulently, untruthfully, or with intent to injure.
In the aforementioned examples involving fictitious Mr A and Mr Z, it was clear as day that the claims made by Mr A were entirely without factual foundation. In the first example, there was a conspicuous absence of a factual basis for Mr A to claim for the money, given that it was a sum that had already been repaid. In the second example, there was a conspicuous absence of a factual basis for Mr A's positive averment that he owed Z nothing. These examples precisely highlight that the transgressions that the drafters intended to address under Section 209 of the Indian Penal Code were those of making claims without factual foundation.
Section 209 was enacted in India with the primary goals of preserving the sanctity of the Court of Justice and safeguarding the due administration of law by preventing the deliberate issuance of false claims. Similarly, in the United Arab Emirates, Article 253 to Article 261 of the UAE Penal Code identify perjury as a crime that affects the justice process, and set out penalties to moderate lawful testifying.
Chapter One of Title Three of the UAE Penal Code and its treatment of Perjury
Chapter One of Title Three of the UAE Penal Code concerning crimes that affect the justice process specifically addresses false testimony, perjury, and abstention of testifying.
Article 253 of the UAE Penal Code states that he who issues false testimony before a judicial authority, or a competent organization that has the jurisdiction to hear oath-bound witnesses, will be sentenced to a minimum of three months in detention. The same fate awaits those who deny the truth, or keep silent about all or part of the relevant facts of the case known to them, regardless of whether they are admitted to testify or not, and whether or not their testimony was accepted in the proceedings..
If the perjurer should perpetrate this act during the investigation of a felony or trial thereof, Article 253 states that he shall be sentenced to term imprisonment. In the dire case that he false testimony issued leads to death sentence or life imprisonment, the perjurer shall also be sentenced to the same penalty.
Article 254 exempts from penalty the witness who retracts his false testimony prior to the closing of the investigation, and before he could be denounced. Another brand of witness who is allowed exemption from penalties as per Article 255 is the witness who would be subject to a severe truncation of his freedoms and honor, if he told the truth. The witness who would have, upon speaking the truth, exposed himself, his spouse, one of his ascendants, descendants, brothers, sisters, or in-laws to danger is also exempt from penalties. However, if such perjury exposes another person to any sort of legal prosecution, the perjurer shall be sentenced to detention for a minimum term of six months.
Article 256 further states that the court-ascertained sanction shall be halved for the person responsible for instigating the false testimony, if and only if the witness unwittingly exposes him to any of the freedom-threatening scenarios elaborated upon in Article 255 by speaking the truth.
With regard to experts appointed by a judicial authorities in civil or criminal proceedings, Article 257 states that the expert, who knowingly puts forth a statement which offends the truth, or contorts its true meaning, shall be sentenced to detention for a minimum period of a year. Furthermore, he shall be prohibited from practicing his profession in the future. In case the perjurious statement the expert is made in context of a felony, he shall be sentenced to term imprisonment. The aforesaid penalties shall also apply for the translator who deliberately produces a wrong translation in a civil or criminal case. Further developments with regard to criminal liability of UAE experts (arbitrators and the such) shall be further discussed in this article.
Moving into medical domain, Article 258 of the UAE Penal Code states that a physician or a midwife, who accepts any grant, privilege, or promise thereof in return for the issuance of a false testimony with regard to pregnancy, birth, illness, disability or death, shall be sentenced to imprisonment for a period that shall not exceed five years.
As per Article 259, an individual that who employs torture, force, or any variation of a threat to have someone else keep silent about a matter, or to have them issue untrue statements shall be sentenced to detention for a period not exceeding one year; they shall also be fined a sum not exceeding five thousand Dirhams.
We spoke earlier about the oath, and how essential an ingredient it was to the occurrence of perjury. As per Article 260 of the UAE Penal Code, any civil litigant, forced to give the oath, who has sworn contrary to the truth in the proceedings shall be sentenced to detention for a maximum period of two years, and to a maximum fine of ten thousand Dirhams. However, it is of value to note that, should the offender revert to the truth prior to the rendering of the judgment of the case in which the oath was taken, the offender shall be exempted from the aforementioned penalty.
Furthermore, should an individual asked to testify refuse to take the oath, he shall be sentenced to detention for a maximum term of one year, and to a maximum sanction of five thousand Dirhams. However, the offender shall be exempt from the penalty if he retracts his refusal to take the oath prior to the issue of the judgment.
Arbitral tribunals greatly prize witness evidence, and with the goal of ensuring its integrity, Article 211 of Federal Law Number 11 of 1992 Concerning the Civil Procedures Code), the previous UAE Arbitration Chapter, stated that “arbitrators should administer an oath to the witnesses and whoever makes a false statement before the arbitrators shall be deemed to have committed the crime of perjury.” Previously, it was held that, if such an oath was not prescribed, the finality of the arbitral award could be compromised.
However, the new UAE Arbitration Chapter, which came into effect on June 2018 with the enactment of the Federal Law Number 6 of 2018 concerning Arbitration (the Federal Arbitration Law), the express requirement for taking witness testimony on oath appears to have been relaxed. Specifically, Article 33(7) of the Federal Arbitration Law states that, “unless otherwise agreed by the parties, hearing the statements of the witnesses, including the experts, shall be carried out as per the effective laws of the State.”
The arbitral tribunal’s failure to administer an oath to the witnesses before they testify in arbitral proceedings has the potential taint the validity of the arbitral award, especially if the fallacious witness testimony was the basis of the latter’s reasoning or ruling.
Potential Criminal Liability for UAE Arbitrators
Article 257 of the UAE Penal Code, elucidated upon above, was amended by the Federal Law Number 7 of 2016 to introduce criminal liability for arbitrators, experts, and translators who issue decisions and opinions that are contrary to the tenets of impartiality and honesty.
Prior to its amendment, Article 257 was confined in its scope to the criminal liability of experts appointed by the courts. Today, Article 257 applies to arbitrators and experts who are appointed by an administrative or judicial authority, or ones that have been nominated by the parties- if they go against their duties of honesty in issuing a decision, filing a report, or asserting fact, they shall be punished by temporary imprisonment. Pursuant to Article 68 of the UAE Penal Code, the period of temporary imprisonment could be between three (3) to fifteen (15) years. However, it is a conceivably difficult task to establish that an arbitrator has failed to act in an honest and impartial manner. This boils down to the fact that perjury, as such, is difficult to prove.
The judicial system of the UAE, however, has a well-oiled system in place to discourage false testifiers and perjurers – the UAE Penal Code promotes cognizance, directs prosecution, and punishes those found guilty accordingly.
Indeed, to enable courts to ward off unjustified encumbrances in their functioning, those who engage in perjury have to be appropriately dealt with. Else, it would be a Herculean task for any court to administer justice in the true sense, and in a fashion that meets the satisfaction of those that approach it armed with the hope that truth might ultimately prevail.