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The truth about statutory declarations

What makes

What is the difference between a statutory declaration and just saying something is true?

WHAT is the difference between signing a statutory declaration (SD) and just saying something is true? Indeed, how are they different from “normal” statements? Is something more true just because it’s contained in an SD? And what happens when an SD is retracted? Until private investigator P Balasubramaniam emerged in the public eye, many probably never thought to even ask themselves such questions.

Najib Razak

Najib Razak

As many now know, Balasubramaniam signed a 1 July 2008 SD, stating amongst other things, that Abdul Razak Baginda had told him that Datuk Seri Najib Razak had introduced murdered Mongolian Altantuya Shaariibuu to Abdul Razak in Singapore. Balasubramaniam, however, retracted those parts of his first SD on 4 July 2008 with a second SD, saying the first was signed under duress. After mysteriously disappearing, Balasubramaniam then turned up on a Malaysia Today video interview in November 2009 retracting his earlier retraction, saying it was his second SD that was false and that his first SD’s contents were true.

We do not know whether anything that Balasubramaniam said in his SDs are true. But we do know this is true: At least one of Balasubramaniam’s SDs is false. As they are conflicting, it is impossible for both of them to be true. So, according to the Statutory Declarations Act 1960, Balasubramaniam has contravened the Penal Code’s section 199 by making a false statement in a declaration.

The attorney-general however, seems to disagree. In a speech in Parliament, Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz revealed that investigations into Balasubramaniam’s SDs have been closed after “careful consideration”. This has led Balasubramaniam to openly challenge the AG to charge him, stressing that his second SD contained “a pack of lies”.

I swear…

(© Steve Snodgrass | Flickr)

(© Steve Snodgrass | Flickr)

As far as the truth of the matter is concerned, there is no difference whether one signs an SD or not. Signing an SD doesn’t guarantee the truth of its contents. The maker of an SD can still lie. The main difference is that if one lies in an SD, one faces criminal sanctions such as a fine or jail term imposed by the state. This is as opposed to, say, lying to your spouse, or lying when swearing on the Bible or in a mosque. In these other cases, sanctions may still apply, but are generally not criminal in nature.

Anyone can sign an SD to attest that something is true. The document will merely need to state that it is being signed pursuant to the Statutory Declarations Act 1960 and the maker’s signature must be witnessed by a Sessions Court judge, magistrate or commissioner of oaths.

In practice, SDs are commonly used for procedural matters. For example, business license applicants may need to attest that they are not declared bankrupts. Bank loan applicants may need to attest that the property being purchased will be used for their own residence.

As stated by lawyer Bhag Singh in a 2008 article, using an SD is a straightforward way of “confirming facts which would otherwise be too tedious or impossible to verify.” The existence of the penal sanction allows organisations and authorities to take concrete action should false statements have been made in an application.

Why an SD?

There's a missing piece of the puzzle here... (© Michał Trochimiak | sxc.hu)

A piece of the puzzle is missing… (© Michał Trochimiak | sxc.hu)

It is curious that Balasubramaniam chose to make his revelations in the form of an SD. As stated above, an SD’s contents are not guaranteed to be true. Legally, it has no direct implications on any individual other than Balasubramaniam who can be charged if his declarations are false. There is also no procedural obligation for the police to investigate his claims.

Ordinarily, claims such as those made by Balasubramaniam should be reported to the police to assist in any ongoing investigations or prosecution. According to Balasubramaniam’s first SD however, he did convey the information on Najib, Abdul Razak and Altantuya to the police when he was detained in relation to investigations into Altantuya’s murder. He claims, however, that police omitted this information in the police statement he was asked to sign. And when the prosecution did not raise any of these issues in their case, Balasubramaniam said he felt compelled to sign an SD and go public with what he knew.

Proposed amendments

Which brings us to whether or not the AG should charge Balasubramaniam for his false SD, be it the first or the second. In deciding whether or not to prosecute, the AG would generally look at whether there is a realistic prospect of conviction and whether it would be in the public interest.

Given Balasubramaniam’s initial retraction of his first SD and then insistence that he lied in his second SD, it looks like there are realistic prospects of convicting him of lying in at least one SD. And it would certainly be in the public interest to ensure that those found making false statements in SDs are held accountable. Especially when those statements may be harmful or defamatory of others.

Liew Vui Kong (© parlimen.gov.my)

It appears however that charges for Balasubramaniam are not in the pipeline. Meanwhile, the Barisan Nasional (BN) government proposed in June 2010 that the law on SDs be changed to make commissioners of oaths responsible for an SD’s contents. Deputy Minister in the Prime Minister’s Department Datuk Liew Vui Kong said commissioners of oaths would have to verify the contents to ensure they are not contentious or prejudicial to others. Amongst the reasons cited for the proposed amendment was to prevent SDs from being used to defame others or cheat land owners.

This proposal was heavily criticised by the Bar Council. It stated that this would place far too onerous a burden on commissioners of oaths, whose main function should be to attest that the person who signed the declaration was indeed the person who made it.

Truth

But beyond whether or not the AG charges Balasubramaniam, the million-dollar question that everyone probably wants answered is this: Is it true that Abdul Razak Baginda told Balasubramaniam that Najib had introduced him to Altantuya? Without Balasubramaniam being prosecuted, the public will likely never know whether he was just making wild, unsubstantiated allegations or whether there was any basis to what he alleged.

Ding Jo-Ann wonders whether we can handle the truth.

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4 Responses to “The truth about statutory declarations”

  1. Kapt(B) says:

    To know the truth PI Bala must be charged in court. WILL THE AG DO IT ???????? I doubt AG will proscute PI Bala cause there are too much at stake

  2. Gopal Raj Kumar says:

    A statutory declaration is nothing more than a written statement declared under oath to be ‘true’ in a prescribed form before an authorised witness. The form and content being prescribed by the relevant legislation for the purpose.

    A statutory declaration is typically used in out of court proceedings, although it may be admitted as evidence in court in proceedings as evidence; as opposed to an affidavit, which is a written and signed declaration of facts made by a person voluntarily and under oath, also in a prescribed form before a prescribed witness and admissible in court in proceedings in place of a live witness.

    In Balasubramaniam’s case, whether he claims he lied in the first or second statutory declaration he made is irrelevant. Whatever he has said or retracted whether under oath or not is now subject to his credit as a witness.

    Of his own admission he is unreliable, claiming now to have lied under oath. That statement of itself could well be self-serving to cover a greater lie or further deception.

    What is relevant is that the lawyer who administered the oath and drafted the statutory declaration (Siddhu on record) appears to have failed to satisfy the most basic requirement imposed on a legal practitioner in such circumstances, in determining the veracity or probability of the truth of the contents of the statutory declaration, in this case Balasubramaniam’s statement.

    [...]

    Cheers.
    Gopal Raj Kumar


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