Republic of the Philippines

Department of Justice
NATIONAL CITY PROSECUTION SERVICE XI
OFFICE OF THE CITY PROSECUTOR
Tagum City, Davao del Norte

SHERRY A. BUGHAO
Complainant , Crim Case No. XI-09-
INV- 19H-00428

FOR: PERJURY
-vs-

DIONISIO P. LABASTIDA
Respondent

x------------------------------------------------x

COUNTER-AFFIDAVIT
THE UNDERSIGNED RESPONDENT, assisted by the undersigned
counsel respectfully alleges:

PREFATORY STATEMENT

As quoted by Dean Wigmore, a leading 19th

Century Commentator, noted that English
law, “throws every fence round a person
accused of perjury, for the obligation of
protecting witnesses from oppression or
annoyance, by charges, or threats of
charges, of having made false testimony is
far paramount to that of giving even perjury
its deserts.”

perjury vs. Labastida 1

 THE PARTIES

Complainant, ARNOLD DUMAT, is a resident of Purok Mahogany,

Rabe Subd., Visayan village, Tagum City;

Rspondent, Dionisio P. Labastida is was the former barangay captain

of Visayan Village, Tagum City who served his barangay constituents
for almost decade. For purposes if this investigation, all orders,
notices and papers shall be sent to:

MAHINAY LAW OFFICE

187 Dominica St., Solariega
Talomo,Davao City
Atty. Gilda S. Mahinay
+63-906-624-8650/+63-919-863-9226
Telephone No.082-285-3710
Email ad: jbci98@yahoo.com

JURISDICTION

The City Prosecutors Office of Tagum City has jurisdiction over the
case as it is alleged to have been committed in Tagum City.

ALLEGATIONS IN THE COMPLAINT

1. The complainant alleged that the respondent executed a

verified complaint against the complainant on April 20, 2015 for the
crime of malversation of public funds;

2. That same complaint was dismissed due to lack of probable

cause due to insufficiency of evidence.

perjury vs. Labastida 2

3. That because of the dismissal of complaint, it is very clear that
the allegations are fabricated, false, blatant lies, deceiving and
bereft of any truth;

4. That the respondent interfered the role of the complainant

being an Indigenous People Mandatory Representative (IPMR) as the
latter is mandated by law under Section 13 of the Republic Act 8371
(Indigenous Peoples Right Act) to have self-governance and self-
determination.

EVIDENCE OF THE COMPLAINANT

1. Annex “A”, the complaint affidavit of the respondent which was

verified;

2. Annex “B”, the Affidavit of Witness executed by Nazario B.

Coronel;

3. Annex “C”, the Affidavit of Witness executed by Brenda

Hingabay;

4. Annex “D”, the Resolution of the City Prosecutors Office of

Tagum City;

5. Annex “E”, the IPRA Law.

Annex “A” to “D” were attached to prove the elements of perjury

and thus the respondent is allegedly liable for his perjured
statement. Annex “E” was attached to prove that the respondent
interfere the IP activity.

perjury vs. Labastida 3

 DEFENSES OF THE RESPONDENT

1. That the complaint lodged by the complainant was fabricated

allegations. It has no basis in fact and in law, but merely designed
to weave a story to further implicate the respondent.

2. That to further shed light on the root cause of this accusation,

the respondent hereby manifests that indeed, he executed a sworn
statement against the complainant for malversation of public funds;

3. That upon perusal of the said document there is nothing

indicative of a perjured statement, but a biblical narration of what
truly happened on the funds received by the complainant from the
respondent;

4. That the allegations in the verified complaint executed by the

respondent was not false and fabricated but based on the
surrounding facts and circumstances;

5. The affidavit complaint was made in good faith and in his

personal capacity as taxpayer and in his official capacity as the
Punong Barangay;

6. Basically, the punong barangay should serve the best interests of

the barangay as a whole. He or she should not be selective in who
to serve. He or she is expected to know the basics of accounting,
law-making, commerce, taxation, and other general principles. He
or she should have strong leadership traits and sound decision-
making abilities. Knowledge in these areas will help ease the
burden of his or her office. In his or her hand lies the future of an
entire barangay.

7. The “Little President” of the barangay is expected to keep in

mind the general welfare of the barangay, and know by heart and
fulfill ALL the following responsibilities: (Section 389, Republic Act
7160)

perjury vs. Labastida 4

  Enforce all laws and ordinances which are applicable within the
Barangay;
 Negotiate, enter into, and sign contracts for and in behalf of the
Barangay, upon authorization of the Sangguniang Barangay;
 Maintain public order in the Barangay and, in pursuance thereof,
assist the city or municipal mayor and the sanggunian members in the
performance of their duties and functions;
 Call and preside over the sessions of the Sangguniang Barangay and
the Barangay assembly, and vote only to break a tie;
 Upon approval by a majority of all the members of the Sangguniang
Barangay, appoint or replace the Barangay treasurer, the Barangay
secretary, and other appointive Barangay officials;
 Organize and lead an emergency group whenever the same may be
necessary for the maintenance of peace and order or on occasions of
emergency or calamity within the Barangay;
 In coordination with the Barangay development council, prepare the
annual executive and supplemental budgets of the Barangay;
 Approve vouchers relating to the disbursement of Barangay funds;
 Enforce laws and regulations relating to pollution control and
protection of the environment;
 Administer the operation of the Katarungang PamBarangay in
accordance with law;
 Exercise general supervision over the activities of the Sangguniang
Kabataan;
 Ensure the delivery of basic services as mandated by law;
 Conduct an annual Palarong Barangay which shall feature traditional
sports and disciplines included in national and international games, in
coordination with the Department of Education, Culture and Sports;
 Promote the general welfare of the Barangay; and
 Exercise such other powers and perform such other duties and
functions as may be prescribed by law or ordinance

8. The Sangguniang Barangay, through the Punong Barangay, shall

render a PUBLIC ACCOUNTING OF the funds raised at the
completion of the project for which the fund-raising activity was
under- taken;

9. That the filing of malversation of public funds against the

complainant was in GOOD FAITH necessary to carry into effect the
responsibility of the Punong Barangay as mandated in the Local
Government Code;

10.That the money received by the complainant from the

respondent through the financial assistance from former
congressman Olaño, is considered public fund. Hence, subject to
the government accounting and procedures.

perjury vs. Labastida 5

11.That the complainant is considered a public servant as he was
occupying the seat of the barangay council as IPMR. Under the NCIP
Memo Circular No. 001-2009, which provides:

SECTION 11. Term of and Removal from Office. The term of

office of the IPs mandatory representative in the local
legislative councils shall be for a period of three (3) years from
the date of assumption to office and can be re-indorsed for
another term by the ICCs/IPs constituents but in no case shall
the representative serve for more than three (3) consecutive
terms. For LGUs with more than one (1) ICCs/IPs residing within
its jurisdiction, all ICCs/IPs tribes in said LGU may agree on a
term-sharing agreement based on population ratio, or on
whatever local arrangement they may deem suited and
applicable to address the cultural peculiarities in that LGU. The
IPs mandatory representative can be replaced anytime by the
ICCs/IPs who selected him/her to the position in accordance
with their local guidelines on recall/removal from office.

SECTION 12. Selection and Assumption to Office. The selection

of the particular ICC/IP representative to the local legislative
council shall be in accordance with the Local Guideline that the
concerned ICCs/IPs shall adopt and promulgate, which considers
the cycle of traditional or local activities, and must be
compliant to this Administrative Order by containing, at least,
the following:

a. Title;
b. Definition of Terms;
c. Selection process which should make a delineation of
representation to the levels of the Barangay, Municipality, City
and Province;
d. Qualifications and Disqualifications;
e. Community Confirmation and Nomination;
f. Vacancy; Disciplinary Action;
g. Term of Office; Recall/Removal;
h. Special Provisions, if any;
i. amendment; and
j. Effectivity Clause

12.That it is explicit in the administrative order of National

Commission on Indigenous People (NCIP) that IPMR shall seat in the
legislative body of the barangay and shall undergo some processes
of his selection;

13.That the self-governance and self –determination does not refer

to the IPMR in his official capacity but rather refer to the entire
Indigenous Cultural Communities or Indigenous People. Section 13
of RA 8371 provides:

Section 13. Self-Governance. - The State recognizes the inherent

right of ICCs/IPs to self-governance and self-determination and
respects the integrity of their values, practices and institutions.

perjury vs. Labastida 6

 Consequently, the State shall guarantee the right of ICCs/IPs to freely
pursue their economic, social and cultural development .

ARGUMENTS AND DISCUSSIONS

Perjury is the willful and corrupt assertion of a falsehood under

oath or affirmation administered by authority of law on a material
matter. The elements of the felony are:

(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 oath.
(c) That in that 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.

A mere assertion of a false objective fact, a falsehood, is not

enough. The assertion must be deliberate and willful. 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
the 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 as
consciously ignorant of its truth.

Perjury cannot be willful where the oath is according to belief or

conviction as to its truth. A false statement of a belief is not
perjury. Bona fide belief in the truth of a statement is an adequate

perjury vs. Labastida 7

defense. A false statement which is obviously the result of an
honest mistake is not perjury.

There are two essential elements of proof for perjury: (1) the
statement made by the defendants must be proven false; and (2) it
must be proven that the defendant did not believe those
statements to be true. Knowledge by the accused of the falsity of
his statement is an internal act. It may be proved by his admissions
or by circumstantial evidence. The state of mind of the accused
may be determined by the things he says and does, from proof of a
motive to lie and of the objective falsity itself, and from other facts
tending to show that the accused really knew the things he claimed
not to know.

A conviction for perjury cannot be sustained merely upon the

contradictory sworn statements of the accused. The prosecution
must prove which of the two statements is false and must show the
statement to be false by other evidence than the contradicting
statement. The rationale of this principle is thus:

… Proof that accused has given contradictory testimony under oath at a

different time will not be sufficient to establish the falsity of
testimony charged as perjury, for this would leave simply one oath of
the defendant as against another, and it would not appear that the
testimony charged was false rather than the testimony contradictory
thereof. The two statements will simply neutralize each other; there
must be some corroboration of the contradictory testimony. Such
corroboration, however, may be furnished by evidence aliunde tending
to show perjury independently of the declarations of testimony of the
accused.

The term “material matter” is the main fact subject of the inquiry,
or any circumstance which tends to prove that fact, or any fact or
circumstance which tends to corroborate or strengthen the
testimony related to the subject of the inquiry, or which
legitimately affects the credence of any witness who testified. In
this case, a matter is material if it has a material effect or
tendency to influence the Prosecutor in resolving the complaint one

perjury vs. Labastida 8

way or the other. The effects of the statement are weighed in
terms of potentiality rather than probability.

APPLICABLE LAW AND JURISPRUDENCE

In Flordelis vs. Himalaloan, G.R.

No.L-48088, July 31, 1978

One of the grounds for dismissing the perjury case is the privilege
character of the allegation in a pleading. It was held that: “It is
clear that any statement contained in an appropriate pleading
filed in court that is relevant to the issues in the case to which it
relates is absolutely privileged and it is the law that the same may
not be made the subject of a criminal prosecution.”

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
oath.

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.

In Acuav. Deputy Ombudsman for Luzon (G.R. No. 144692,2005),

perjury vs. Labastida 9

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.

People v. Angangco, G.R. No. L-

47693, October 12, 1943

It was held that the word “requires” in the phrase “in cases in
which the law so requires” (in Article 183 of the Revised Penal
Code) may be given the meaning of “authorizes.” Hence, the fourth
element may be read “that the sworn statement (or affidavit)
containing the falsity is authorized by law.”
Thus, even if there is no law, requiring the statement to be made
under oath, as long as it is made for a legal purpose, it is sufficient.

Eriberto Masangkay vs. People

of the Philippines, G.R. No.
164443, June 18, 2010.

However, the prosecution failed to establish the element of

deliberate falsehood. A conviction for perjury cannot be obtained
by the prosecution by merely showing the inconsistent or
contradictory statements of the accused, even if both statements
are sworn. The prosecution must additionally prove which of the
two statements is false and must show the statement to be false by
evidence other than the contradictory statement.

The rationale for requiring evidence other than a contradictory

statement is explained thus:

Proof that accused has given contradictory testimony under

oath at a different time will not be sufficient to establish
the falsity of his testimony charged as perjury, for this
would leave simply one oath of the defendant as against

perjury vs. Labastida 10

 another, and it would not appear that the testimony
charged was false rather than the testimony contradictory
thereof. The two statements will simply neutralize each
other; there must be some corroboration of the
contradictory testimony. Such corroboration, however, may
be furnished by evidence aliunde tending to show perjury
independently of the declarations of testimony of the
accused.

CONCLUSION
Public office is a public trust. It must be
discharged by its holder not for his own
personal gain but for the benefit of the public
for whom he holds it in trust. By demanding
accountability and service with responsibility,
integrity, loyalty, efficiency, patriotism and
justice.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed to

this Honorable Prosecutor to DISMISS the above-entitled case for
LACK OF PROBABLE CAUSE.

Other reliefs just and equitable under the premises are likewise
prayed for.

RESPCTFULLY SUBMITTED. 12 October 2018, Tagum City, Davao del

Norte.

DIONISIO P. LABASTIDA
Respondent

Assisted by:

perjury vs. Labastida 11

 ATTY. GILDA S. MAHINAY
Counsel for the Respondent
187 Dominica St. Solariega, Puan, Talomo,Davao City
PTR No. 2366867/June 25, 2018
IBP No. 043007/ May 17,2018
Roll No. 70474
MCLE EXEMPTED

SUBSCRIBED AND SWORN to before me this _____ day of October, 2018 at

Tagum City, Davao del Norte, Philippines. I HEREBY CERTIFY, that I personally
examined the affiant and I am satisfied that she has read and understood the
contents of the Affidavit and that she executed the same freely and
voluntarily.

perjury vs. Labastida 12