Monday, 2 December 2013

Expert witness under civil and islamic law in Malaysia-part 1

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.




[1] Akta 561
[2] Act 56

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