ISLAMIC LAW OF EVIDENCE :

ITS DEVELOPMENT AND

EXPERIENCE OF ITS
IMPLEMENTATION IN MALAYSIA

TOPIC 1
 Introduction
• Malaysia got independence on 31/8/1957
• Art 3 FC : Islam is the religion of the Federation,
but other religion may be practiced in peace &
harmony.
• States jurisdiction to enact laws dealing with
Islam.
• List 11, 9th Sch FC – State List-
 Historical background
• Islam has been the religion since 15th century.
• Islamic Law was the source of law in Melaka
Laws before 1511 in matters relating to family,
criminal, constitutional as well as procedural
matters ( the issue of evidence).
• Islamic Law of Evidence was enacted and
comprehensively implemented including
matters relating to hudud offences.
 • s 35 - Confession
• s.37 - Testimony
Melaka laws • s. 38 - BOP & SOP
Responsibility of
• giving evidence

• Majallah al-Ahkam being

translated into Malay
Johore language and followed by
the authority.
• British Colonial Power
- narrowed down
- only dealing with personal matters
-sometimes being intervened even in personal
-matter by applying English principles.

In Re Goods of Abdullah (1835) 2 Ky. Ecc. Rs 8

Will – Muslim disposed the entire property has been
declared as valid.
Development of the Islamic Law of
Evidence in Malaysia

• First Phase
1

• Second Phase
2

• Third Phase
3
 First Phase
• Emergence of the Administration of Muslim Law
Enactment in Selangor in 1952

• The Administration of Muslim (Islamic) Law Enactment

covers administrative issues including :-
• Administration of courts
• Issues related to conversion
• Majlis (council)
• Fatwa
• Mufti
• Procedural aspects (including evidence)
• Criminal matters
• Section 53 specifically deals with evidence.

• (1) The Court shall observe all provisions of

Muslim Law relating to the number, status or
quality of witnesses or evidence required to
prove any fact. Save as aforesaid, the Court shall
have regard to the law of evidence for the time
being in force in the Malay State, and shall be
guided by the principles thereof, but shall not
obliged to apply the same strictly.
(2) Evidence shall be ordinarily given on oath in a
form binding upon Muslims, but the Court may
on special grounds dispense with an oath and
take evidence on affirmation. An affirmation shall
be in the form: “I……………… (Name) solemnly
affirm that my evidence shall be the truth, the
whole truth and nothing but the truth”. Whether
on oath or on affirmation a witness shall be
bound to state the truth.”
 Terengganu, 1955
S 33

Melaka, 1959

Followed by
s.49

Penang, 1959
S 49

Negeri Sembilan -1960

s.50

Kedah –1962
s 50

Perlis - 1964
ss23(1)(2)
 Perak -1965
s55

Followed by
Kelantan, 1966, Syariah Courts &
Muslim Matrimonial Causes
Enactment
S8

Sabah- 1977
s54

Johore- 1978
s72

Sarawak- 1978, Majlis Islam

(Incorporation) (Am) Ord.
s54
## Provision on evidence has been incorporated
in the Administration of Muslims Law
Enactment in each state .
 Second Phase

• 1989 – law dealing with evidence was separated from

the Administration of Muslim Law Enactment .
 1989 -Kedah – Syariah Court
Evidence Enactment 1989.

separation 1990 -Pahang

1991- Kelantan , N.Sembilan

Melaka,Sarawak.

1992- Sabah

1993- Johore
 1994- Perak

Separation 1996- Selangor & Penang

1997 –Federal Territories

2001 - Terengganu

2006- Perlis
 Structure
4 parts with several chapters
Part 1 : Part 11
RELEVANCY PROOF
• Qarinah • Oral evidence
• Iqrar • Documentary evidence
• Statements made by • Public documents
persons who cannot be • etc
called as witness
• Statements made under
special circumstances
• etc
Part 111 Part IV
PRODUCTION AND GENERAL
EFFECT OF EVIDENCE
• Burden of Proof Dealing with “general
• Witnesses issues”
• Examination of
witnesses
• Special provisions
relating to testimony of
witnesses
Model

Model of Kedah
Followed by Pahang

Model of Kelantan
Followed by N.9, Mka, Swak,
Sabah & Johor
Model of FT
Followed by Sgor, Penang,
Tganu & Perlis
Model of Perak
(Only Perak)
• Differences & Similarities of
the models ???
 Model of Kedah Model of Kelantan

• X provision on examination • Arrangement of section = FT

of witnesses as compared to Act with slightly different in
other states term of its construction of
- section 91 of FT Act. sentence.
• Specific section on a no of
witness for zina case while
in other states, this section
is absent.
 Model of Perak Model of FT

• Some provisions followed • Existing act.

Kelantan model with some
additional sections dealing
with public document and a
document produced by a
computer.

• Provision relating to
evidence given by the
witness – 6 sections only
while in other states – 11
sections.
 Other differences
Arabic expression
• Different number between one state to another.
eg:-
24 : FT 1997, Penang 1996, Selangor 1996.
26 : Terengganu 2001, Kelantan 2002,
30 :Perak 1994.
54: Kelantan 1991, Negeri Sembilan 1991.
55: Johor 1993.

• Some states like Kedah, Pahang, Sabah and Sarawak

have no Arabic expression at all.
 Third Phase
• Syariah Court Evidence Enactments was revised to
be in line with the Federal Territories Act 1997.
• 2001- Sarawak.
• 2002 -Kelantan & Melaka.
• 2003 –Selangor, Johore & N.Sembilan.
• 2004 – Penang & Sabah.
• 2006 – Perlis & Pahang.
• #Only Kedah has not amended its 1989 enactment
 Observation of its development
Reasons?
i) Internal Factors
ii) External Factors

Internal factors
• Establishment of IIUM – AIKOL -Platform for
students to understand both laws for future
development.
• Technical Committee led by the late Prof Tan Sri
Ahmad Ibrahim as a Chairman – to examine the
existing laws which led to the emergence of
Syariah Court Evidence Enactment.
 External Factor
Development in Pakistan – enforcement of Hudood
Laws.
• i) Evidence Act 1872
• ii) Qanun-e-Shahadah Order 1984 (repealed the
Evidence Act 1872) – Quran & Sunnah as the
main sources.
 Application of the Laws

• Ft Act s 2
• Bukhari Mohd Noor lwn Aishah Ismail (2004)
18 JH (2), 245
• Bukhari Mohd Noor lwn Aishah Ismail
(2006)21 JH(1) 26 (Syariah Appeal Court)
 Conclusion
• Islam is the religion of Federation of Malaysia –
need to be understood comprehensively
• Without prejudice to the jurisdiction of the court
system, it is hoped that all states will give full
cooperation in ensuring that all laws particularly
dealing with evidence to be harmonised.
• By this, it is hoped that Evidence Act 1950 to be
harmonised with Islamic Law as being done in
Pakistan.