The authenticity of electronic document in Islamic Law and Malaysian Law of Evidence

• Main Authors: Mustapa Sa'di, Mursilalaili, Kamarudin, Abdul Rani
• Format: Conference or Workshop Item
• Language: English
• Published: Fakulti Kepimpinan & Pengurusan Universiti Sains Islam Malaysia 2020
• Subjects: K559 Comparative Law
• Online Access: http://irep.iium.edu.my/88518/1/2020%20Electronic%20Document2.pdf; http://irep.iium.edu.my/88518/

With the advancement of technology, the ways human communicates and interacts with each other have changed exponentially, where face to face or physical meetings and contacts can now be replaced with google meet, emails, video conferencing, digital signature etc. in ensuring that the proposed or intendedaffairs are successfully done but is no less efficient, time and cost saving. As the conversation took place through digital platform, it is automatically recorded in binary format, and the electronic evidence is usually automatically generated, recorded and stored. As dispute sometimes could not be avoided, the parties involved could turn to this electronic document to prove their facts in addition to document in traditional format. The fact or facts contained in such document to be adduced in evidence must be legally relevant, primary evidence and authentic as required by the Malaysian Evidence Act 1950 (Act 56). Islamic Law of Evidence too requires the fact presented as evidence in the form of document has to be authentic. The truth of its contents is a separate matter that need to be proven. However, due the nature of electronic evidence being relatively fragile, easily altered and manipulated, countries like Canada, India, and Singapore, have adopted in their Evidence Act, authentication provisions which is unwittingly consistent with the principles of Islamic Law of Evidence. This research is a qualitative research which used data collection and data analysis including library research and semi-structured interview. The finding of this research established that both common law and Islamic law requires that to adduce a document, its authenticity is one of the conditions of admissibility. Countries following common law has even gone further to insert newer authentication provisions in their law of evidence to accommodate the reception of electronic evidence or computer-generated document driven by newer technology. It is proposed that the Malaysian Evidence Act 1950 continues to be updated to keep pace with electronic document or computer-generated document driven by newer technology. However, there must also be provisions to ensure that the authenticity of electronic document must be supported by evidence capable of supporting a finding that the electronic document is that which it is purported to be. This technology driven document is also known as digital document, electronic document or computer-generated document.