SYARIAH COURT EVIDENCE (FEDERAL TERRITORIES) ACT 1997

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 561 SYARIAH COURT EVIDENCE (FEDERAL TERRITORIES) ACT 1997 As at 1 December 2012 2 SYARIAH COURT EVIDENCE (FEDERAL TERRITORIES) ACT 1997 Date of Royal Assent … … … … … … 27 March 1997 Date of publication in the Gazette … … 31 March 1997 Latest amendment made by Act A1250 which came into operation on … … … … … … … … 2 September 2005 PREVIOUS REPRINTS First Reprint … … … … … 2002 Second Reprint …………… 2006 3 LAWS OF MALAYSIA Act 561 SYARIAH COURT EVIDENCE (FEDERAL TERRITORIES) ACT 1997 ARRANGEMENT OF SECTIONS PART I RELEVANCY CHAPTER 1 PRELIMINARY Section 1. Short title, application and commencement 2. Application 3. Interpretation 4. Presumption CHAPTER 2 QARINAH General 5. Evidence may be given of facts in issue and qarinah 6. Facts forming part of same transaction are qarinah 7. Facts which are the occasion, cause or effect of facts in issue or relevant facts 8. Motive, preparation and previous or subsequent conduct 9. Facts necessary to explain or introduce fact in issue or relevant fact 10. Things said or done by conspirator in reference to common design 11. When facts become qarinah 4 Laws of Malaysia AKTA 561 Section 12. In suits for damages, facts tending to enable Court to determine amount are qarinah 13. Fact which becomes qarinah when right or ‘urf is in question 14. Facts showing existence of state of mind or of body or bodily feeling are qarinah 15. Facts bearing on question whether act was accidental or intentional 16. When existence of course of business is qarinah Iqrar 17. Iqrar defined 18. Admissibility of iqrar 19. Iqrar made in a state of marad al-maut Statements by Persons who cannot be called as Witnesses 20. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is qarinah 21. Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated Statements made under Special Circumstances 22. When entries in books of account are qarinah 23. When entry in public record made in performance of duty is qarinah 24. Statements in maps, charts and plans are qarinah 25. Statement as to fact of public nature contained in certain legislation or notifications are qarinah 26. Statements as to any law contained in law books are qarinah How Much of a Statement to be proved 27. What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers Syariah Court Evidence (Federal Territories) 5 When Judgments of Courts are Qarinah Section 28. Previous judgments relevant to bar a second suit or trial 29. When certain judgments in probate, etc., are qarinah 30. When judgments, orders or decrees are qarinah 31. When judgments, etc., are not qarinah 32. Fraud or collusion in obtaining judgment or incompetency of Court may be proved When Opinion of Third Persons is Qarinah 33. Opinion of experts 34. Facts bearing upon opinions of experts 35. When opinion as to handwriting is qarinah 36. When opinion as to existence of right or ‘urf is qarinah 37. When opinion as to usages, tenets, etc., is qarinah 38. When opinion as to relationship is qarinah 39. When grounds of opinion are qarinah When Character is Qarinah 40. In civil cases, character to prove conduct imputed is not qarinah 41. In criminal proceedings, previous good character is qarinah 42. Previous bad character not qarinah except in reply PART II PROOF CHAPTER 1 FACTS WHICH NEED NOT BE PROVED 43. Facts judicially noticeable need not be proved 44. Facts of which Court must take judicial notice 45. Facts admitted need not be proved 6 Laws of Malaysia AKTA 561 CHAPTER 2 ORAL EVIDENCE Section 46. Proof of facts by oral evidence 47. Oral evidence must be direct CHAPTER 3 DOCUMENTARY EVIDENCE 48. Proof of contents of documents 49. Primary evidence 50. Secondary evidence 51. Proof of documents by primary evidence 52. Cases in which secondary evidence relating to documents may be given 53. Rules as to notice to produce 54. Proof of signature and handwriting of person alleged to have signed or written document produced 55. Admission of writing, signature or seal 56. Proof of document Public Documents 57. Public documents 58. Private documents 59. Certified copies of public documents 60. Proof of documents by production of certified copies 61. Proof of certain official documents Presumption as to Documents 62. Presumption as to genuineness of certified copies 63. Presumption as to documents produced as record of evidence 64. Presumption as to Gazettes, newspapers, etc. 65. Presumption as to maps or plans made by authority of Government 66. Presumption as to collection of laws and reports of decisions Syariah Court Evidence (Federal Territories) 7 Section 67. Presumption as to powers of attorney 68. Presumption as to certified copies of foreign judicial records 69. Presumption as to books, maps and charts 70. Presumption as to telegraphic messages 71. Presumption as to due execution, etc., of documents not produced PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER 1 BURDEN OF PROOF 72. Burden to produce evidence in civil case 73. Burden of proof 74. On whom burden of proof lies 75. Burden of proof as to particular fact 76. Burden of proving fact necessary to be proved to make evidence admissible 77. Burden of proving that case of accused comes within exceptions 78. Burden of proving fact especially within knowledge 79. Burden of proving death of person known to have been alive within thirty years 80. Burden of proving that person is alive who has not been heard of for four years 81. Burden of proof as to ownership 82. Court may presume existence of certain facts CHAPTER 2 WITNESSES 83. Who may testify as witnesses 84. Dumb witnesses 85. Evidence of husband, wife, parent and child 86. Number of witnesses 87. Manner of giving evidence 8 Laws of Malaysia AKTA 561 Section 88. Evidence by a single witness and oath by plaintiff CHAPTER 3 EXAMINATION OF WITNESSES 89. Order of production and examination of witnesses 90. Court to decide as to admissibility of evidence 91. Examination-in-chief, cross-examination and re-examination 92. Order of examinations and direction of re-examination 93. Cross-examination of person called to produce a document 94. Witnesses to character 95. Leading questions 96. When leading questions may not be asked 97. When leading questions may be asked 98. Evidence as to matters in writing 99. Cross-examination as to previous statements in writing 100. Questions lawful in cross-examination 101. Court to decide when question shall be asked and when witness compelled to answer 102. Question not to be asked without reasonable grounds 103. Procedure of Court in case of question being asked without reasonable grounds 104. Indecent and scandalous questions 105. Questions intended to insult or annoy 106. Exclusion of evidence to contradict answers to questions testing veracity 107. Question by party to his own witness 108. Impeaching credit of witness 109. Questions tending to corroborate evidence of relevant fact admissible 110. Former statements of witness may be proved to corroborate later testimony as to same fact 111. What matters may be proved in connection with proved statement which is qarinah under section 20 or 21 Syariah Court Evidence (Federal Territories) Section 112. Refreshing memory 113. Testimony to facts stated in document mentioned in section 112 114. Right of adverse party as to writing used to refresh memory 115. Production of documents and their translation 116. Giving as evidence of document called for and produced on notice 117. Using as evidence of document production of which was refused on notice 118. Judge’s power to put questions or order production CHAPTER 4 SPECIAL PROVISIONS RELATING TO TESTIMONY OF WITNESSES 119. Determining that a witness is ‘adil 120. Witness to be examined through parties related to him 121. Secret examination 122. Number of secret examiners 123. Open examination 124. Testimony in open examination forms part of syahadah 125. When witness need not be examined 126. Denial (ta’n) over a witness 127. When findings of witness examiners differ 128. Dead or missing witness 129. When witness required to take the oath PART IV GENERAL 130. Final reference 131. Discontinuance of application of Evidence Act 1950 132. Cessation of application of the Enactment SCHEDULE 9 11 LAWS OF MALAYSIA Act 561 SYARIAH COURT EVIDENCE (FEDERAL TERRITORIES) ACT 1997 An Act to define the law of evidence for the Syariah Court. [Federal Territories of Kuala Lumpur and Labuan— 1 April 1997, P.U. (B) 105/1997; *Federal Territory of Putrajaya—1 February 2001, P.U. (A) 249/2002] BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: PART I RELEVANCY CHAPTER 1 PRELIMINARY Short title, application and commencement 1. (1) This Act may be cited as the Syariah Court Evidence (Federal Territories) Act 1997 and shall apply to the Federal Territories of Kuala Lumpur and Labuan. (2) This Act shall come into force on a date to be appointed by the Yang di-Pertuan Agong by notification in the Gazette. *NOTE—In its application to the Federal Territory of Putrajaya—see the Federal Territory of Putrajaya (Extension and Modification of Syariah Court Evidence (Federal Territories) Act 1997) Order 2002 [P.U. (A) 249/2002]. 12 Laws of Malaysia AKTA 561 Application This Act shall apply to all judicial proceedings in or before any Syariah Court. Interpretation 3. (1) In this Act, unless the context otherwise requires— “Administration Act” means the Administration of Islamic Law (Federal Territories) Act 1993 [Act 505]; “‘aqil” means of sound mind; “baligh” means having attained the age of puberty in accordance with “Hukum Syarak”; “bayyinah” means evidence which proves a right or interest and includes qarinah; “computer” means any device for recording, storing, processing, retrieving or producing any information or other matter, or for performing any one or more of those functions, by whatever name or description such device is called; and where two or more computers carry out any one or more of those functions in combination or in succession or otherwise howsoever conjointly, they shall be treated as a single computer; “Court” or “Syariah Court” means the Syariah Subordinate Court, Syariah High Court or the Syariah Appeal Court, as the case may be, constituted under section 40 of the Administration Act; “document” means any matter expressed, described, or howsoever represented, upon any substance, material, thing or article, including any matter embodied in a disc, tape, film, sound track or other device whatsoever, by means of— Syariah Court Evidence (Federal Territories) 13 (a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation whatsoever; (b) any visual recording (whether of still or moving images); (c) any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever; (d) a recording, or transmission, over a distance of any matter by any, or any combination, of the means mentioned in paragraph (a), (b) or (c), or by more than one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter; ILLUSTRATIONS A writing is a document. Words printed, lithographed or photographed are documents. A map, plan, graph or sketch is a document. An inscription on wood, metal, stone or any o