Law of Evidence (Malaysia) vs Islamic Law of Evidence

The ordinary meaning of "evidence" in the context of proof of a fact, is any information obtained from documents, objects or witnesses which may or tends to prove the existence of the fact. Re Fong Thin Choo [1992] 1 SLR 120 at page 128 stated that "evidence is not a proof, but the means of proof". 

Issue 1: Overview – Origin

Law of Evidence (Malaysia) is based on common law principles. The law governs matter of evidence is Evidence Act 1950 (Act 56) while Islamic Law of Evidence is found in the Qur'an. Subsequently the principles enunciated in the Qur'an had, through the evolution of time and for precision's sake, been codified, inter alia, as the Kelantan Evidence Enactment No 2 of 1991. The codified Act has many similarities as compared to the Evidence Act 1950 but with regard to admission (iqrar) and oath (yamin), there are many differences. 

Issue 2: Burden of Proof

i. Law of Evidence (Malaysia)

The term 'burden of proof'' refers to the general rule that in a legal proceeding, be it criminal or civil, one party has to prove his case. Generally, the accused in criminal proceeding has to raise doubt in the prosecution's case. The question as who bears the burden of proof in a legal proceeding is a question of law to be decided by the judge. By virtue of section 3 of the Evidence Act 1950, "proved" : the Act envisages two situations when a fact is said to be proven ie (i) when the court believes that a particular fact exists and (ii) when the court considers its existence so probable that a prudent man would believe that it exists.

Based on the case of John v Dharmaratnam [1962] MLJ 187, it was stated that in civil action, any party who makes an allegation bears the burden of proving that allegation. Otherwise, in criminal proceeding, the general rule is that the prosecution bears the legal burden of proof. This was enunciated in the case of Mat v PP [1963] MLJ 263. However, there are exceptions to this general rule. For instance, by way of statutory presumptions ie when the prosecution relies on available statutory presumptions to be prove vital elements of the charge, the particular burden of proof to rebut such presumptions shift to the defence (Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 171) and also alibi ie where the accused relies on the defence of alibi, then he has the legal burden to prove this defence (Dato Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232). 

ii. Islamic Law of Evidence 

The burden of proof is on the party making the claim and the oath lies on the person who is denying the claim. The Mejelle which is the codification of the Ottoman Civil Code (between 1869-1876) is used as an authoritative text states through Article 8 that 'freedom from indebtedness is to be presumed'. When the party making a claim is unable to produce sufficient evidence to establish his claim then according to Article 76, the Mejelle, the plaintiff's claim fails. (RK Nathan - A Practical Approach To Evidence in Malaysia & Singapore).

Issue 3: Standard of Proof

Following the common law, the general rule is that only the prosecution is imposed with the standard of proving case beyond reasonable doubt. The accused, defendants and plaintiffs have the burden of proving their case only on balance of probabilities. However, there are exceptions to this general rule (Rafiah Salim - Evidence in Malaysia & Singapore, Second Edition)

i. Law of Evidence (Malaysia)

a) Criminal Cases

It is settled law that in criminal cases, the prosecution must prove the charge beyond all reasonable doubt. Mohamed Azmi SCJ in Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169 stated that "It is well established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence which he is charged. 

b) Civil Cases

In an allegation of running brothel or permitting the use of premises for immoral purposes, the standard of proof on the plaintiff is the ordinary civil standard, ie on the balance of probabilities. This was set out in the case of Eastern Enterprises Ltd v Ong Choo Kim [1969] 1 MLJ 236.

ii. Islamic Law of Evidence 

a) Based on absolute certainty with no room for doubt. It is establish through shahadah & iqrar.

b) Proof required is beyond reasonable doubt.

c) Article 73 The Mejelle - where there is probability which is based on reasonable grounds, such probability prevails even over proof.

d) Where there is doubt, evidence is unacceptable. The legal maxim 'certainty is not dispelled by doubt' applies.

e) Article 74 The Mejelle - supposition ie 'to imagination without foundation in fact, no weight is given'. This means, mere supposition without evidence is unacceptable.