In the Malaysian legal system, the pursuit of truth often relies on written testimony. While affidavits and statutory declarations are both instruments used to verify facts in writing, they are governed by distinct legal frameworks and serve fundamentally different purposes. Understanding these differences is critical for practitioners and litigants alike, as using the wrong instrument can result in evidence being excluded or rendered legally ineffective.
1. Fundamental Definitions and Legal Rationale
An affidavit is a statement or declaration in writing made on oath or affirmation before a person authorized to administer it. Its primary existence is rooted in the judicial process, serving as a mechanism to adduce written evidence in court.
Conversely, a statutory declaration is a statement made under the Statutory Declarations Act 1960. While it is a statement made under a form of oath, it is technically “not sworn” in the same manner as a court-mandated affidavit. It is designed for extrajudicial occasions—situations where a person needs to declare something to be true to satisfy a legal requirement or regulation when no other evidence is available.
2. Governing Laws and the Evidence Act 1950
One of the most significant distinctions lies in how these documents interact with the Evidence Act 1950.
- Affidavits and Section 2: Under Section 2 of the Evidence Act 1950, the Act applies to all judicial proceedings but expressly does not apply to affidavits presented to any court or officer. Instead, affidavits are strictly regulated by procedural rules, specifically Order 41 of the Rules of Court 2012.
- Statutory Declarations: These are governed by the Statutory Declarations Act 1960. Unlike affidavits, they do not require a “cause or matter” (an active court case) to be validly executed.
Despite the exclusion in Section 2, case law such as Riedel-de Haen AG v Liew Keng Pang [1989] 2 MLJ 400 (HC) clarifies that while the Act doesn’t apply to the form of the affidavit, it does not mean the contents are immune from evidentiary standards once challenged.
3. Intended Use: Judicial vs. Extrajudicial
The venue determines the instrument:
- Affidavits (Judicial): These are mandatory for interlocutory proceedings, applications in chambers, and matters commenced by Originating Summons. They are the “lifeblood” of summary judgment applications and injunctions.
- Statutory Declarations (Administrative): These are typically used for administrative or commercial purposes, such as:
- Verifying identity, nationality, or marital status when documents are missing.
- Verifying claims for the entry of a private caveat under the National Land Code.
- Registering a bill of sale.
- Declaring an intention to change one’s name.
4. Admissibility and the “Witness Box” Requirement
Neither an affidavit nor a statutory declaration is considered “evidence” proprio vigore (by its own force) under the Evidence Act 1950.
However, both can be admitted as substantive evidence under Section 32 of the Evidence Act 1950 if the maker is dead, cannot be found, or is otherwise unavailable. As established in Public Prosecutor v Forster [1988] 2 MLJ 594, the affidavit of a living person falls within the meaning of “statement” under Section 32 and is admissible if the strict conditions of that section (such as the witness being overseas) are met.
5. Formalities and Form
The Rules of Court 2012 impose strict formal requirements on affidavits that do not apply to statutory declarations:
- First Person Rule: Every affidavit must be expressed in the first person. Failure to do so was seen as a fatal defect in Ahmed Ibrahim Bilal v Ketua Polis Negara Ahmed Ibrahim Bilal v Ketua Polis Negara [2011] 1 CLJ 85 CA.
- Deponent Particulars: An affidavit must state the deponent’s place of residence and occupation.
- The Jurat: The “jurat” (the certification at the end) must follow specific forms in Form 74. If a deponent is illiterate or doesn’t understand the language, the jurat must certify that the document was read over and explained.
- Authority: If a deponent is affirming on behalf of a company, they must state they are duly authorized to do so.
Statutory declarations, while needing to be “solemnly and sincerely declared,” follow a simpler prescribed form under the 1960 Act and do not require court intitulements.
6. Hearsay and Interlocutory Laxity
A major difference exists regarding the inclusion of hearsay:
- Under Order 41 rule 5(2), an affidavit used in interlocutory proceedings may contain statements of information or belief, provided the sources and grounds are clearly identified.
- For final orders (such as a full trial or certain summary judgments), affidavits must be strictly confined to facts the deponent can prove from personal knowledge. Hearsay in a “final” affidavit is generally inadmissible, as noted in AmInvestment Bank Bhd v Nep Holdings (M) Bhd [2014] 8 MLJ 271 HC.
7. Commercial Limitations: The Loan Recovery Trap
A critical distinction highlighted in recent case law is the use of these documents for debt recovery. In the landmark case of Randhir Singh Bhajnik Singh v Sunildave Singh Parmar [2019] 6 MLRA 549, the Court of Appeal warned that statutory declarations are not generally used to recover a loan.
The court reasoned that using an SD to document a loan impinges on the Stamp Act 1949. A loan agreement requires ad valorem duty to be paid; if a party uses an SD to circumvent this duty, the document “may not be worth the paper it is written on” for the purpose of proving the debt in court.
8. Credibility and Weight
While both are written, they carry different “probative weight” during a trial:
- Previous Statements: If a witness gives oral evidence that contradicts their previous statutory declaration, the SD serves as a powerful tool for impeachment under Section 145.
- Acceptance by Conduct: In Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49, the Privy Council noted that the fact that a witness had made a previous contrary statement in the solemn form of a statutory declaration was to be given great weight in assessing their credibility.
Summary Table of Differences
| Feature | Affidavit | Statutory Declaration |
|---|---|---|
| Primary Context | Judicial (active court cases) | Extrajudicial (administrative/regulatory) |
| Governing Law | Rules of Court 2012 (Order 41) | Statutory Declarations Act 1960 |
| Nature of Act | Sworn on oath or affirmed | Solemnly declared; not “sworn” |
| Heading | Must be entitled in a “cause or matter” | No court heading required |
| Hearsay | Allowed in interlocutory matters if sources cited | Generally viewed as hearsay unless maker testifies |
| Cross-Examination | Deponent is liable to be cross-examined | Maker rarely cross-examined unless doc is moved to court |
| Debt Recovery | Used as evidence in summary judgment | Discouraged due to Stamp Act implications |
In conclusion, while the affidavit is a sword and shield in the courtroom, the statutory declaration is a tool for administrative certainty. Misapplying them—especially using an SD for loan recovery or an affidavit without the “first person” rule—can lead to severe procedural setbacks.
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
