8. Extra Judicial Perjury

Section 106 lays down:

“Whosoever, in any other case not referred to in the preceding sections of this Subtitle, shall make a false oath before a Magistrate or any other officer authorised by law to administer oaths, shall on conviction be liable:

(a) To hard labour for a term from four months to one year, if the oath required by law, or ordered by a judgement or decree of any court in the island of Malta and its Dependencies

(b) To hard labour for a term not exceeding three months if the oath be not so required or ordered.”

This provision does not apply to promissory oaths. This section deals with false statements on oath made otherwise than by a witness or a party or the accused or a referee in a civil or criminal cause, or by an interpreter in judicial proceedings.

The elements of this crime are:

(i) A false statement

(ii) Wilfully made

(iii) On oath

(iv) Before a person authorised by law to administer oaths.

With regard to the second element which constitutes the intentional element of the crime it is necessary that the person making the statement should have the full consciousness of perverting the truth. If on account of ignorance, forgetfulness or other cause exclusive of malice a statement has been made which is objectively false, no criminal responsibility under this section is incurred157 .

The material element of the crime is the false statement on oath. The oath, being an appeal to the Deity to be witness of that which is asserted creates a religious bond which is effectual only for those who, having a religious persuasion, see in it a binding obligation on their conscience. Our law, as we have already seen, makes provision for the taking of an oath by persons who do not belong to the Roman Catholic Church.

8. Extra Judicial Perjury

157 Puccioni, Codice Penale Toscano Illustrato, Vol. IV, pp. 203 - 225

And moreover, by section 109 of the Criminal Code the solemn declaration or affirmation of any person authorised by law to make a declaration or affirmation in lieu of taking an oath has the same effect so far as regards the punishment contemplated in sections 102-107 as if the person making the declaration or affirmation had been lawfully sworn.

The oath must be lawfully administered, that is in the form and with the ceremonies which the law itself prescribes and by a person who is authorised by law to administer oaths. By our Code of Procedure every Court and every Judge or Magistrate has the power to administer oaths: other officers have this power specially conferred on them by particular laws for certain specified purposes158 .

“Assertory” oaths not “promissory” ones are here concerned. An assertory oath is one on which a present or past fact is affirmed or denied: a promissory oath is that by virtue of which a person binds himself to a future positive or negative obligation e.g., oath of office. It is admitted by all and our law expressly lays it down that promissory oaths do not subject the party violating to the penalties of perjury. This exclusion from criminal sanction rests on the consideration that, generally speaking, one has not at the time of the taking of such oath the criminal intent of violating it. This intent may arise subsequently on the occasion of the doing of some act which is incompatible with the promise given. In such case either the act which breaks faith with that promise is in itself criminal and, then, it is punishable according to its nature and the character of the offence arising there from, or that act is not criminal and therefore, it constitutes merely an immorality.

For the purposes of punishment in respect of this crime (which must always include interdiction: sec. 107) a distinction is made between oaths which are required by law or ordered by a judgement or decree of any Court in these Islands, and other oaths not so required or ordered. The punishment is considerably higher in the former case. Instances of oaths required by law, are those made necessary to obtain the issue of precautionary warrants (Sec. 835 and Sec. 863, Code of Civil Procedure, or to be admitted to free legal aid (Sec. 915 ibid.)

158 V. e.g., The Commissioners for Oaths Ordinance of 1934; The Attorney General Ordinance of 1936