Facts judicially noticeable need not be proved
s 43
No fact of which the Court will take judicial notice need be proved.
Syariah Court Evidence (Federal Territories) Act 1997 Part II — Proof
CHAPTER 1 — FACTS WHICH NEED NOT BE PROVED
Facts of which Court must take judicial notice
s 44
(1) The Court shall take judicial notice of the following facts: (a) all laws having the force of law now or heretofore in force or hereafter to be in force in Malaysia; (b) articles of war for the armed forces or any visiting force lawfully present in Malaysia; (c) the course of proceedings in Parliament and in the legislature of any State in Malaysia; (d) the accession of the Yang di-Pertuan Agong and the accession of the Ruler of any State in Malaysia and the appointment of a Yang di-Pertua Negeri; (e) the seals of all the courts of Malaysia, all seals which any person is authorized to use by any law in force for the time being in Malaysia and of notaries public; (f) the accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in Malaysia, if the fact of their appointment to such office is notified in the Gazette or in any State Gazette; (g) the ordinary course of nature, natural and artificial divisions of time, the geographical divisions of the world, the meaning of Malay, English and Arabic words, public festivals, fasts and holidays notified in the Gazette or in any State Gazette; (h) the names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all Peguam Syarie and other persons authorized by law to appear or act before it; (i) the rules of the road, sea regulations and the rules of the air; (j) all other matters which it is directed by any written law to notice. (2) In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. (3) If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until the person produces any such book or document as it considers necessary to enable it to do so.
Facts admitted need not be proved
s 45
(1) Subject to subsection 17(2), no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. (2) The Court may, in its discretion, require the facts admitted to be proved otherwise than by such iqrar.
CHAPTER 2 — ORAL EVIDENCE
Proof of facts by oral evidence
s 46
All facts, except the contents of documents, may be proved by oral evidence.
Oral evidence must be direct
s 47
(1) Oral evidence shall in all cases whatever be direct, that is to say— (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; (c) 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; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. (2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise. (3) If oral evidence refers to the existence or condition of any material thing including a document, the Court may, if it thinks fit, require the production of that material thing or the document for its inspection.
CHAPTER 3 — DOCUMENTARY EVIDENCE
Proof of contents of documents
s 48
The contents of documents may be proved either by primary or by secondary evidence.
Primary evidence
s 49
Primary evidence means the document itself produced for the inspection of the Court. Explanation 1—Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original they are not primary evidence of the contents of the original. Explanation 3—A document produced by a computer is primary evidence. ILLUSTRATION A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
Secondary evidence
s 50
Secondary evidence includes— (a) certified copies given under the provisions hereinafter contained; (b) copies made from the original by mechanical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies; (c) copies made from or compared with the original; (d) counterparts of documents as against the parties who did not execute them; (e) oral accounts of the contents of a document given by some person who has himself seen or heard it or perceived it by whatever means. ILLUSTRATIONS (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy but afterwards compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
Proof of documents by primary evidence
s 51
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
Cases in which secondary evidence relating to documents may be given
s 52
(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases: (a) when the original is shown or appears to be in the possession or power— (i) of the person against whom the document is sought to be proved; (ii) of any person out of reach of or not subject to the process of the Court; or (iii) of any person legally bound to produce it, and when after the notice mentioned in section 53 such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative admitted in writing before a Judge or Commissioner for Oaths who is a Muslim; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 57; (f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. (2) (a) In the cases referred to in paragraphs (1)(a), (c) and (d), any secondary evidence of the contents of the document is admissible. (b) In the case referred to in paragraph (1)(b), the written admission before a Judge or Commissioner for Oaths who is a Muslim is admissible. (c) In the case referred to in paragraph (1)(e) or (f), only a certified copy of the document is admissible. (d) In the case referred to in paragraph (1)(g), evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents.
Rules as to notice to produce
s 53
Secondary evidence of the contents of the documents referred to in paragraph 52(1)(a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his Peguam Syarie or other persons authorized by law to appear or act before it, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the Court thinks fit to dispense with it: (a) when the document to be proved is itself a notice; (b) when from the nature of the case the adverse party must know that he will be required to produce it; (c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (d) when the adverse party or his agent has the original in Court; (e) when the adverse party or his agent has admitted the loss of the document; or (f) when the person in possession of the document is out of reach of or not subject to the process of the Court.
Proof of signature and handwriting of person alleged to have signed or written document produced
s 54
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting shall be proved to be in his handwriting.
Admission of writing, signature or seal
s 55
(1) Admission as to writing, signature or seal shall be admissible as an admission of the person who wrote or executed such document. (2) An admission made in a document which is written or caused to be written by a person under his signature or seal and handed over to another person shall be admissible as an iqrar, provided that subsection 17(2) is complied with.
Proof of document
s 56
(1) Where the executant of a document denies the writing or the liability created therein, the writing and the execution of such document shall be proved at least by two witnesses to the document. (2) Where witnesses to the document cannot be found, the writing and the execution of the document shall be proved by two persons who can identify the writing and signature of the writer and executant of the document. (3) Where witnesses to the document or the persons referred to in subsection (2) can identify the writing and signature, the executant of the document shall be bound by any liability created therein. (4) Where witnesses to the document or the persons referred to in subsection (2) do not completely identify the writing and signature on the document, the writing and signature on the document shall be authenticated by at least two experts. (5) Where the writing and signature on the document has been authenticated by the experts, the executant of the document shall be bound by any liability created therein. (6) Where a document cannot be proved in any of the aforesaid manner, the person who denies the writing and execution of the document shall, on the request of the person who alleges that the aforesaid person is the executant of the document, take the oath, and if he refuses to do so, the person who alleges may take the oath and thereafter establish his claim. Public Documents
Public documents
s 57
The following documents are public documents: (a) documents forming the acts or records of the acts of— (i) the sovereign authority; (ii) official bodies and tribunals; and (iii) public officers, legislative, judicial and executive, whether Federal or State or of a foreign country; and (b) public records kept in Malaysia of private documents.
Private documents
s 58
All documents other than those mentioned in section 57 are private.
Certified copies of public documents
s 59
Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate, written at the foot of the copy, that it is a true copy of the document or part thereof, as the case may be, and the certificate shall be dated and subscribed by the officer with his name and his official title, and shall be sealed whenever the officer is authorized by law to make use of a seal, and the copies so certified shall be called certified copies. Explanation—Any officer who by the ordinary course of official duty is authorized to deliver the copies shall be deemed to have the custody of the documents within the meaning of this section.
Proof of documents by production of certified copies
s 60
Copies certified in the manner set out in section 59 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
Proof of certain official documents
s 61
The following public documents may be proved as follows: (a) acts, orders or notifications of the Federal Government or any State Government in any of its departments— (i) by the records of the departments certified by the heads of those departments respectively; (ii) by a Minister in the case of the Federal Government, and by the Menteri Besar or the Chief Minister, a State Minister (if any), or the State Secretary in the case of a State Government; or (iii) by any document purporting to be printed by the authority of the Government concerned; (b) the proceedings of Parliament or of the legislature of any State, by the minutes of the body or by the published Acts of Parliament, Ordinances, Enactments or abstracts or by copies purporting to be printed by the authority of the Government concerned; (c) the proceedings of a municipal body, town board or other local authority in Malaysia, by a copy of the proceedings certified by the lawful keeper thereof, or by a printed book purporting to be published by the authority of that body; (d) the acts of the Executive or the proceedings of the legislature of a foreign country, by Gazette published by their authority or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Ordinance or Act of Malaysia; (e) public documents of any other class in a foreign country, by the original or by a copy certified by the lawful keeper thereof, with a certificate under the seal of a notary public or of a consular officer of Malaysia that the copy is duly certified by the officer having the lawful custody of the original and upon proof of the character of the document according to the law of the foreign country. Presumption as to Documents
Presumption as to genuineness of certified copies
s 62
(1) The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any Government officer in or outside Malaysia who is duly authorized thereto: Provided that the document is substantially in the form and purports to be executed in the manner directed by law in that behalf. (2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in the document.
Presumption as to documents produced as record of evidence
s 63
Whenever any document is produced before any Court purporting to be a record or memorandum of the evidence or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be an iqrar by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge, High Court Judge, Sessions Court Judge or Magistrate or by any such officer as aforesaid, the Court shall presume that— (a) the document is genuine; (b) any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, is true; and (c) such evidence, statement or iqrar was duly taken.
Presumption as to Gazettes, newspapers, etc.
s 64
The Court shall presume the genuineness of every document purporting to be a Gazette of the Federal Government or any State Government or to be a newspaper or journal and of every document purporting to be a document directed by any law to be kept by any person, if the document is kept substantially in the form required by law and is produced from proper custody.
Presumption as to maps or plans made by authority of Government
s 65
The Court shall presume that maps or plans purporting to be made by the authority of the Federal Government or any State Government were so made and are accurate.
Presumption as to collection of laws and reports of decisions
s 66
The Court shall presume the genuineness of every book purporting— (a) to be printed or published under the authority of the Government of any country and to contain any of the laws of that country; or (b) to contain reports or decisions of the courts of that country.
Presumption as to powers of attorney
s 67
The Court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a Judge or consular officer of Malaysia was so executed and authenticated.
Presumption as to certified copies of foreign judicial records
s 68
The Court may presume that any document purporting to be a certified copy of any judicial record of any foreign country is genuine and accurate if the document purports to be certified in any manner which is certified by any representative of the Yang di-Pertuan Agong in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.
Presumption as to books, maps and charts
s 69
The Court may presume that any book to which it may refer for information on Islamic Law or any matter of public or general interest, and that any published map or chart the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published.
Presumption as to telegraphic messages
s 70
The Court may presume that a message forwarded from a telegraph office to the person to whom it purports to be addressed corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom the message was delivered for transmission.
Presumption as to due execution, etc., of documents not produced
s 71
The Court shall presume that every document called for and not produced, after notice to produce was given under section 53, was attested, stamped and executed in the manner required by law.
Back to Syariah Court Evidence (Federal Territories) Act 1997 — full text
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Text as at 1 January 2006 (LOM reprint); amendments made after that date may not be incorporated. Read the official text ↗
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
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