©New Straits Times
(Used by permission)
THERE is no doubt that the statutory declaration is a much talked–about legal
document in recent weeks. Some have now even wryly dubbed it "sextutory"
declaration.
What is a statutory declaration?
In simple terms, it is a statement made under oath outside the court before a
Sessions Court judge, magistrate or a commissioner for oaths. If it is used for
a purpose outside Malaysia, then it must be made before a notary public.
A statutory declaration is often used where documentary evidence is not
available, to affirm personal matters relating to an individual such as his
identity, marital status, nationality and solvency.
Under the Statutory Declarations Act 1960 ("Act 13"), a statutory declaration
must begin with the words "I do hereby solemnly and sincerely declare..." and
end with the words "I make this solemn declaration conscientiously believing the
same to be true, and by virtue of the provisions of the Statutory Declarations
Act 1960".
In the absence of these words, it has been held by the courts
that such a statement is not a statutory declaration.
It follows that a statutory declaration should not contain any hearsay evidence,
since the declarant is making a statement under oath "conscientiously believing
the same to be true".
Even if the statutory declaration contains hearsay evidence, the declarant
should disclose the source of such information.
This brings me to the two conflicting statutory declarations made by private
investigator P. Balasubramaniam in a matter of 24 hours. Whatever it is, the
statements contained in one of the declarations are obviously untrue.
By resiling from what he has affirmed in the first declaration, Bala's public
recantation by way of a second declaration is not only self–incriminating but
also constitutes damning evidence that he has lied in the first declaration.
Under Section 3 of Act 13 and Section 199 of the Penal Code, a declarant who
makes a false declaration is treated as if he has given false evidence.
Section 193 of the Penal Code provides that: "Whoever intentionally gives false
evidence in any stage of a judicial proceeding, or fabricates false evidence for
the purpose of being used in any stage of a judicial proceeding, shall be
punished with imprisonment for a term which may extend to seven years, and shall
also be liable to fine; and whoever intentionally gives or fabricates false
evidence in any other case, shall be punished with imprisonment for a term which
may extend to three years, and shall also be liable to fine."
However, Bala has affirmed in the second declaration that he was compelled to
make the first declaration under duress, and he ended his second declaration
slightly differently from what is required under Act 13, with an additional
word, "voluntarily", that is: "I make this solemn declaration voluntarily and
conscientiously believing the same to be true, and by virtue of the provisions
of the Statutory Declarations Act 1960."
In other words, Bala is saying he was not coerced into making the second
declaration, and that the first declaration can now be treated as arrant
nonsense.
In any event, if Bala is charged with giving false evidence, duress can be a
defence but he has to produce evidence to that effect to exculpate himself. It
is, however, inappropriate to discuss here the effect of his ignominious
statutory declarations on the evidence he earlier gave and his position as a
witness.
However, what concerns me is not so much the two statutory declarations but
rather how a separate trial is being conducted by the media and bloggers when
the actual murder trial is ongoing.
Little regard is had to the rule of sub judice. There appears to be a virtual
breakdown of law and order as statements are constantly being made outside court
by various parties which, in other cases, would have constituted contempt and
interference with the due process.
But so far no party, especially the prosecution, has seen the need yet to apply
for any gag order to stop these pernicious activities.
It seems to me now that after the March 8 elections, our mainstream media are
prepared to take sides over several issues. This is good in the name of press
freedom.
But we cannot throw out of the window long–established practices, one of which
is never to prejudge a case before the completion of police investigation.
Likewise, our media are expected to undertake self–censorship and would not
publish explicit remarks that would malign the dead, and words like "Altantuya
Shaariibuu was susceptible to a certain form of sex" would not have seen the day
unless uttered in a court of law.
Similarly, in any complaint, we do not go after the complainant treating the
victim as if he/she is the villain before the conclusion of investigations.
It is, therefore, sad to note the growing trend these days, that whenever a case
involves an intersection of sex, crime and politics, the media are prepared to
form a judgment and our people are also quick to draw conclusions.
It is hoped that, notwithstanding that some of us may have already made up our
minds on the innocence or guilt of those who accused and those being accused, we
will not, in our haste to do so, sacrifice the principle upon which our nation
is founded: the rule of law.
* The writer, a senior lawyer, is also a commissioner for oaths and notary
public.