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Star (Used by permission)
Articles of law by Bhag Singh
A look at the role and significance of statutory declarations.
MUCH has been said about statutory declarations. A reader wants to know if a
statutory declaration is the same as an affidavit. And in what way does sub
judice and hearsay have relevance?
The starting point would be the offence created by reason of instruments that
courts and public servants are bound to receive. Section 199 of the Penal Code
reads:
“Whoever, in any declaration made or subscribed by him, which declaration any
court, or any public servant or other person, is bound or authorised by law to
receive as evidence of any fact, makes any statement which is false, and which
he either knows or believes to be false or does not believe to be true, touching
any point material to the object for which the declaration is made or used,
shall be punished in the same manner as if he gave false evidence.”
This provision is then followed by Section 200 of the Penal Code which states
that whoever corruptly uses or attempts to use as true any such declaration
knowing the same to be false in any material point, shall be punished in the
same manner as if he gave false evidence. In so far as such declarations are
made in Malaysia, the Statutory Declaration Act 1960 governs the subject.
However, the Interpretation Act 1948 and 1967 includes declarations made outside
Malaysia under any law in force in that place, which provides for making
declarations which are substantially similar in nature and effect to our local
law.
The origin
The first law on statutory declarations in the country was introduced by the
Straits Settlements Ordinance No. 14 of 1885. This was introduced based on the
United Kingdom Statutory Declarations Act enacted two years earlier. These laws
were then extended to the Federated Malay States and later to the Unfederated
Malay States over the next 50 years.
The laws were enacted then because it was necessary in many cases to require
declarations in confirmation of written instruments or allegations, or proof of
debts, or of the execution of deeds or for other purposes. The necessity for the
law has remained. These state enactments made it lawful for any magistrate to
take and receive the declaration of any person voluntarily making the same
before him in the prescribed form. Under these enactments, only magistrates were
empowered to take and receive statutory declarations.
In 1949 a more uniform law was enacted followed by the existing Act in 1960.
Under this Act, a Sessions Court judge, magistrate, commissioner for oaths or
notary public can receive in Malay or English the declaration of any person
voluntarily making the same. This Act is made up of five sections covering two
pages with the form of declaration being annexed to it. Taking away its preamble
and first section which sets out its name and the last two sections which relate
to fee payment and application to Sabah and Sarawak, there are in reality just
two sections.
The declaration is required to be made in the prescribed form and must contain
the words “I make this solemn declaration conscientiously believing the same to
be true.” It may be argued that if these or words to similar effect are not
used, the document will not come within the scope of the Act.
The purpose
The purpose of statutory declarations was to obtain confirmation of written
instruments or allegations or proof of debt or the fact of execution of deed
which was otherwise unavailable but backed by penal sanctions.
This is illustrated by the common use of statutory declarations to confirm facts
which would otherwise be too tedious or even impossible to verify. An authority
building houses for first–time buyers may want each applicant to submit a
statutory declaration to say that he does not yet own a house or any landed
property.
If such a statement was made as an ordinary statement or declaration in the
application for the house, then if it turned out to be untrue it would merely
amount to a misrepresentation that would constitute a breach of contract. If the
statement is made by way of a statutory declaration, then apart from being a
misrepresentation, it would be a breach of contract and constitute an offence
for which the person could be prosecuted.
Hearsay
The subject of hearsay would be relevant when giving evidence in court. This is
in the context of the best evidence rule which courts rely on in deciding
matters before it. It is a requirement under the Evidence Act 1950 that oral
evidence must be direct evidence.
This means that if it refers to a fact which could be seen or heard, it must be
the evidence of a witness who says he saw it or heard it. If it refers to a fact
which could be perceived by any other sense or in any other manner, it must be
the evidence of a witness who says he perceived it by that sense or in that
manner. Therefore when a person makes a statement about what someone told him,
it would only be primary evidence of the fact that someone told him so; it would
not be primary evidence of what was told. This by itself would considerably
devalue the probity or veracity of a statutory declaration.
Hearsay evidence is not always completely inadmissible. Exceptions do exist. An
example is affidavits used in interlocutory proceedings. However, the condition
for doing so is that the source relied on must be disclosed.
Affidavits are also signed before persons similar in status to those before whom
a statutory declaration is signed. Statements in affidavits are viewed seriously
too. A false affidavit would result in serious consequences just like statutory
declarations. But the difference is that an affidavit is made and used in the
context of proceedings in court. The affidavit is a creature of court rules and
unlike the statutory declaration which involves an oath or affirmation to which
the Oaths and Affirmations Act 1949 has relevance.
The word sub judice refers to the status of a proceeding. When a matter is
pending adjudication, the subject matter is in the circumstances sub judice.
However, if a statutory declaration is circulated which has the effect of
influencing or prejudicing the outcome, it could amount to a contempt of court.