Malaysia is one of kind country which has laws of different
types infused in one operational system. Being a previous colony of the British
Empire, this country inherited most of the civil legal system from the British,
this also includes some of the statutes which are pari materia with either
statutes from the United Kingdom or its previous colonies, India, for example. Being
a country with malay majority, islam is the official religion of the land as
stated in the Federal Constitution:
Religion of the Federation
3. (1) islam is the religion of the Federation; but other religions may
be practised in peace and harmony in any part of the Federation.
This results in a two different
court system which makes the Islamic law applicable to certain aspects or
issues of the law. Some of the Islamic law also were made into statutes; a case
in point is the Akta Keterangan Mahkamah Syariah (Wilayah-Wilayah Persekutuan)
1997[1].
The civil version of this statute in Malaysia is the all famous Evidence Act
1950[2].
For the purpose of this discussion, we shall further discuss and compare the
topic on “expert witness” which can be found in the provision of both statutes
that were mention earlier.
In the Evidence act, the provisions
that touch on the issue of expert witness are section 45. The sections read as
follows:
Opinions of experts
45. (1) When the court has to form an opinion upon a point of foreign
law or of science or art, or as to identity or genuineness of handwriting or
finger impressions, the opinions upon that point of persons specially skilled
in that foreign law, science or art, or in questions as to identity or genuineness
of handwriting or finger impressions, are relevant facts.
(2) Such persons are called experts.
The provision is quite
straightforward in explaining how an expert witness’ opinion can be relevant
facts. In the Syariah Courts Evidence (Federal territories) act 1997, the
provision on expert witness can be found in section 33 which reads:
Opinions of experts
45. (1) When the court has to form an opinion upon a point of foreign
law or of science or art, or as to identity or genuineness of handwriting or
finger impressions or concerning the determination of nasab, the opinions upon
that point of persons specially skilled in that foreign law, science or art, or
in questions as to identity or genuineness of handwriting or finger impressions
or concerning the determination of nasab, are qarinah.
(2) Such persons are called experts.
(3) Two or more experts must be called to give testimony if possible
but if there are no two experts, one expert testimony is adequate. If two
experts give different opinions, then a third expert must be called to testify.
This is it for the first part, one the second part later on,
more elaboration will be made on what is qarinah and how does it compare to
relevant facts. How expert witnesses differ under the Evidence act and the
other act will also be discussed.
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