The Use and Uselessness of Statutory Declarations
On 1.11.2022, Vibes.com reported the following: Despite denials by party president Datuk Seri Ahmad Zahid Hamidi, Umno Supreme Council member Datuk Zahidi Zainul Abidin has affirmed the existence of statutory declarations (SDs) given to those with candidate appointment letters (watikah). … Sources said the replacement candidates who have been given candidate appointment letters were also asked to sign letters supporting Zahid by giving him the mandate to form the next cabinet, should Umno and BN win the election. This includes backing Zahid to negotiate with other political parties and to appoint MPs of his choice as cabinet members, effectively positioning him as the prime minister candidate, according to party insiders. Going by the report, I shall assume those ‘letters supporting Zahid’ refer to those statutory declarations that Zahidi Zainul Abidin mentions. The statutory declaration (SD as it is customarily called or a Surat Akuan) has often featured in Malaysian politics whenever there is a need to demonstrate political support or as evidence of a politician’s agreement with another. As a commissioner for oaths (colloquially known as CFOs instead of Commissioner), I am amused by their delusion as to how SD operates. The SD owes its legal existence to the Statutory Declarations Act 1960 (SD60). It is a short Act. It has 5 provisions. For my present purpose, only 2 of them are relevant. It shall be lawful for any Sessions Court Judge, Magistrate, or Commissioner for Oaths or, subject to section 4 of the Notaries Public Act 1959 [Act 115], any notary public appointed under the Notaries Public Act 1959, to take and receive the declaration of any person voluntarily making the same in Malay or English in the form in the Schedule. Section 2 of the Statutory Declarations Act 1960 That provision says a person making an SD must do so voluntarily, in English or Malay, in the statutorily prescribed form, before a CFO, Notary Public, Sessions Court Judge or Magistrate. If a declaration is not made according to the statutorily prescribed form, it does not qualify as an SD. In that case, it would not enjoy the protection contained in the following section. Declarations made by virtue of the provisions of this Act shall be deemed to be such declarations as are referred to in sections 199 and 200 of the Penal Code. Section 3 of the Statutory Declarations Act 1960 That provision says an SD is deemed to be the same as those declarations referred to in those Penal Code provisions. That necessitates consideration of section 199 Penal Code. Statutes are creatures of paradox: precise yet not clear, and at times, thorough yet incomprehensible. It would be so much better if we didn’t have to have it all in one sentence. Several sentences that build upon each other achieve greater clarity than a long serpentine one bristling with qualifications. Now, let’s break down that provision. Firstly, a person commits an offence when he gives a false statement in a declaration, and that declaration is one a court, public servant or other people may receive as evidence of a fact. An example of that would be evidence given in court, statements in a government form, and, of course, an SD. Secondly, that false statement must relate to the purpose for which the declaration is made. For example, if we were asked for an SD to verify our home address, but for whatever reason, lie about the colour of our eyes in it, theoretically, the provision would not bite. The false statement is not in relation to the purpose for which the SD was made i.e., verification of the home address. It is not just any false statement that is actionable. Lastly, the offender must either know or not believe his statement was true at the time of the offence. Following the previous example, if I mindlessly typed in my office address instead of my home one in a declaration (happens) but I can demonstrate that my doing so was an error, I could argue I did not possess the necessary mens rea i.e., criminal intention. The offender’s punishment is the same as the offence of giving false evidence. That necessitates consideration of what is false evidence. That is contained in section 191 of the Penal Code. Whoever, being legally bound by an oath, or by any express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false, or doesnot believe to be true, is said to give false evidence. Section 191 of the Penal Code Any person that makes a false statement when he is legally bound to state the truth, which he knew, believed was false or did not believe true, commits the offence of giving false evidence. Section 193 Penal Code provides the punishment for giving false evidence. It is a maximum of seven years imprisonment if false evidence was given in a court proceeding. If not, it is a maximum of three years imprisonment. Since an SD is a declaration outside a court proceeding, it’s three years. Section 200 Penal Code makes it an offence to use an SD which contains a false statement. The punishment follows the punishment provided for in section 193 Penal Code. What all those provisions come down to is this: Firstly, an SD is a declaration that a court, public servant or any person, is legally authorized to receive as evidence of any fact and accept as true. Secondly, if we make a false statement in our declaration, we can be charged and punished pursuant to sections 199 and 200 Penal Code which provide a maximum imprisonment of 3 years. Thirdly, the provision seems to imply that an SD has to be made or used with a purpose in mind. It does not appear to matter if an SD’s object relates to an official purpose (i.e. government department or private company asking us to
