Tuesday July 15, 2008

Statutory declarations

ARTICLES OF LAW
By BHAG SINGH

The Star

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.