What is a statutory declaration?
A statutory declaration (“SD”) (commonly referred to as “Surat Sumpah” or “Surat Akuan Bersumpah“) is a legal document that enables an individual to insert and affirm the truthfulness of a statement in writing. It is a legally binding declaration signed by an individual affirming that the information provided is accurate and truthful to the best of their knowledge. The law regulating SDs in Malaysia is the Statutory Declaration Act 1960 (“SD Act”).
When is it needed?
Statutory declarations can be used in various legal, administrative, and official contexts. They consist of statements of fact made in a prescribed manner, stating that something is accurate to the best of the declarant’s knowledge. They can be advantageous in the following situations:
- As evidence of support in legal proceedings. They may be required to verify particular facts or statements when no other evidence or documentation is available. For instance, if a person is required to declare their marital status, income, or residency for a specific purpose, they can create a statutory declaration to verify those facts;
- Executions of a final will and testament;
- First-time homebuyers must sign a statutory declaration prepared by their attorney to demonstrate that they are eligible for a partial exemption of stamp duty tax on the property;
- Obtaining information on the execution of any deed via a written instrument, allegation, or proof of debt that would otherwise be too difficult or tedious to be proven;
- Lost or Damaged Documents: When essential documents are lost, stolen, or damaged, statutory declarations can be used to report the circumstances and provide explanations to the authority.
How to properly word a statutory declaration
It is a legal requirement to provide statements consistent with the SD Act. If an important detail has been omitted from an SD, it cannot be considered a declaration under Section 199 of the Penal Code.
Yeoh Oon Theam v Pendakwa Raya [2016] MLJU 406
In this case, the court examined and scrutinised the statutory declaration in question and concurred with the appellant’s counsel that the statutory declaration was deficient. The SD lacks the critical phrase “…and I make this solemn declaration believing the same to be true and pursuant to the provisions of the SD Act.”
- Unless it is an expert opinion, a statutory declaration must ONLY INCLUDE FACTS (which the declarant believes the truth to be proven) and not have any views, hearsay, beliefs, hypothetical claims, or generalisations.
- Each paragraph must be at most five sentences and written in the first person.
- In addition to being within the declarant’s knowledge, the information must be accurate, and the declarant bears the burden of ensuring that the SD remains so.
Referring to the SD Act, SDs must be written according to a specific format outlined below to ensure legal compliance with the law.
Statutory Declaration
I (name) (identity card no.) of (address) do solemnly and sincerely declare that …………………………………………………………………………………………………………………………………………………………………………………………………….
And I make this solemn declaration conscientiously believing that the statement is accurate by virtue of the Statutory Declarations Act 1960.
Affirmed by (name)
At: (place)
On (date and time)
Before me,
……………………………………
(Signature of Sessions Court Judge,
Magistrate, Commissioner of Oaths or
Notary Public)
How is a statutory declaration sworn or affirmed in Malaysia?
A statutory declaration must be sworn appropriately or proclaimed to comply with the SD Act. Following Section 2 of the SD Act, a Sessions Court judge, Magistrate, Commissioner of Oath, or Public Notary has the authority to execute statutory declarations in either Malay or English. They are the only ones who can provide a statutory declaration, a proper attestation, and witnessing in Malaysia.
To what extent does a statutory declaration reflect the truth and accuracy of its contents?
The Act did not mention the advantages or benefits of a statutory declaration. It merely outlines the procedure and necessary format for writing a statutory declaration. Controlling or invalidating any statutory declaration not complying with the SD Act’s requirements is possible. Any declaration made under the SD Act is likewise treated as a declaration under Section 199 and Section 200 of the Penal Code (Act 574).
Section 3 of SD Act:
“Declarations made by virtue of this Act shall be deemed to be such declarations as are referred to in Sections 199 and 200 of the Penal Code.”
What are the consequences of making a false or misleading SD in Malaysia?
Making a false or misleading SD in Malaysia is a serious offence that can result in criminal charges and severe legal consequences.
Under Malaysian criminal law, any person who knowingly makes a statement they know to be false and untrue shall be subject to the same penalties as if they had made a false statement, as outlined in the Penal Code. In Section 200, the penalties for false statements are outlined:
“Whoever corruptly uses or attempts to use as true any such declaration knowing the same to be false in any material point shall be punished in the same manner as if he gave false evidence.”
If a person makes false assertions in an SD while being aware that those statements are inaccurate, they will face serious legal repercussions, as shown in Sections 199 and 200.
Section 199 of the Penal Code
Section 199 states that:
“Whoever, in any declaration made or subscribed by him, which declaration any court, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.”
Under the above section, anyone who makes a false statement in an SD to deceive or cause harm can be punished with imprisonment for up to seven years and a fine as outlined in Section 193 of the Penal Code.
Making false statements could also lead to civil liability
In addition to criminal charges, making a false or misleading SD can also lead to civil liability, where the person who made the declaration may be sued for damages by anyone who suffered harm due to the false statement.
Given the gravity of the offence, the declaration and signatures of statutory declarations are used by numerous government agencies, including the National Registration Department, the Land and Mines Office, and the Malaysian Department of Insolvency. Because of this, people who make statutory declarations must do so openly and forthrightly. To ensure justice and impartiality, the truth and accuracy of a statutory declaration are vital.
Common errors and mistakes when making SD in Malaysia
(1) Failed to fully understand the purpose and legal implications of the document
An SD is a written statement signed by a commissioner of oath or a notary public AND carries the same weight as evidence given under oath in court. People must understand the necessity of being honest and accurate when submitting a statutory statement because of the severe consequences that may result from providing false information.
(2) Not seeking legal advice before making an SD.
While it is not mandatory to consult a lawyer, it is highly recommended, especially if the declaration involves complex legal issues or has significant implications. A lawyer can provide valuable guidance on legal requirements and properly draft an SD, thus, helping to minimise the risk of errors or omissions.
(3) Not keeping a copy of the statutory declaration for their records.
Keeping a copy of the SD is essential, as it serves as proof of the statements made and can be used as evidence in legal proceedings. Failing to keep a copy can make it difficult to prove the contents of the declaration or challenge any discrepancies that may arise.
(4) Failure to properly identify oneself is also a common mistake when making a statutory declaration.
The declarant must provide their full name, address, occupation, and any other relevant information required by the specific declaration. Providing inaccurate or incomplete information can render the declaration invalid or result in legal consequences. It is also essential to ensure that the declarant is the person they claim to be and that they have the legal capacity to make the declaration.
It is important to note that ignorance or mistake is not a defence in cases of false or misleading SD. Therefore, ensuring that all statements made in an SD are true and accurate to the best of your knowledge and belief is crucial.
Summary
While statutory declarations provide a legally binding way for individuals to plead their case, the veracity of such statements ultimately rests with the declarant’s honesty and the thoroughness of the authorities’ verification processes. Therefore, declarants should include true and accurate information while making a statutory declaration. An ordinary statement that turns out to be inaccurate may amount to a misrepresentation that can give rise to civil action if it is made in a contractual setting, but inversely, in addition to being a deception, making a false statement in a statutory declaration would be a criminal violation punishable under the Penal Code.
