Malaysians and the Criminal Law : Evidence and Witnesses

[Sila lihat ‘Muzakarah UMNO dan PAS’ selepas artikel ini]

It may not be an exaggeration to assert that Malaysians may be the most knowledgeable lot when come to criminal law. Be it the knowledge of English Common law, the Islamic Syariah law or the provisions from Quranic verses, Malaysians must be ahead of all other people. How not to, after huge doses of the high profile cases and issues fed to us in the last one or so years by the Malaysian press, be it a rape case, incest or a homosexual case – probably too much for the press to handle with care.

By now most young and adult Malaysians, whether a Malay, a Chinese or Indian; educated or not, probably know what a DNA is, and its use in catching a criminal. It doesn’t need a genius or a scientist to understand it, an ordinary person is likely to know it, or even an idiot. After all there is only a thin dividing line between a genius and an idiot.

DNA, yes it is the latest technology that provides evidence in criminal law. Against it, or so it seems, is the 1500 year old Syariah Law that requires four male witnesses to such crime as rape or consensual sex. At first impression DNA evidence is the best, it is now being used in Civil Court to provide strong evidence in criminal cases, even where witnesses are not available. After all how to get four male witnesses to the crime? Normally rapist doesn’t do it in front of four hostile witnesses- he normally prefers four friendly witnesses! All sex offenders are like that lah! We all know that. So, one may ask, how can Islamic society protect rape or sodomy victims?

But Islamic law only means to ensure justice, hence the need for a very stringent set of evidence. It does not want innocent man to be executed. So female witnesses are excluded. May be because they are apt to hysteria! Just remember at schools, only female students suffer from hysteria. So, given the technology of that time(DNA not yet discovered), four pious men were needed as witnesses, and that they must see the action themselves! Only such conditions ensured fairness-probably even more stringent than the doctrine of ‘beyond reasonable doubt’.

But such witnesses are hard to come by, while DNA evidence are more practical to find. After all DNA evidence, a scientific process just discovered, is foolproof. Though not the same as watching the actual action, it is as good as seeing one. But probably with one important condition, that four male experts bear witness to the process of handling the DNA samples in question from A to Z. Male witnesses only? What about female expert witnesses? That is open to discussion.

In addition, there should not be any need to question which authority to oversee the procedures involved. It should be handled in the same way as any other forensic evidence practised in this country and in any advanced country.

So much for the time being, if you like some heavier stuff please look at the other articles below.

Bye.

[the above article is only intended as a scholarly article on an issue currently prevalent in our Malaysian society].

DAH Ikhwan

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3 Responses to Malaysians and the Criminal Law : Evidence and Witnesses

  1. JohnMcCain says:

    Very interesting site. Hope it will always be alive!
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  2. encik abu says:

    Assalamualaikum Dah Ikhwan,
    Are there cases involving challenging contents/authenticity etc of Malaysi Birth Certs becoz seems like Section 33(1) Births and Deaths Registration Act 1957 is an all Malaysian mighty law?Please give me citations.Wassalam

    • DAH IKHWAN says:

      encik abu,

      I am sorry I am not aware of such cases. However, there are high profile cases contesting data in the content of Identity Cards. in particular on religious status of the card bearer.

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