Affidavits must comply with mandatory procedural rules for admissibility; non-compliance leads to dismissal of applications due to lack of supporting evidence.

PENGHAKIMAN

After submissions by learned counsel for the applicant and the learned Senior Federal Counsel for the respondents,I have adjourned this matter in order to prepare my reserved judgment. In the course of perusing all the affidavits and exhibits in support of and in opposition to this application, I noticed that the affidavit of the deponent was affirmed in BahasaMalaysia and the deponent signed in Tamil. There was no indication whatsover in the deponent’s affidavit that the deponent is literate in Bahasa Malaysia. There was no evidence in this affidavit.

O.41, r.3 of the Rules of the High Court 1980 provides as follows:

“Where it appears to the person administering the oath that the deponent is illiterate ...., he must certify that -

(a) the affidavitwas read in his presence to the deponent;

(b) the deponent seemed perfectly to understand it; and

(c) the deponent made his signature or mark in his presence;

and the affidavit shall not be used in evidence without such a certificate unless the court is satisfied that it was read to and appeared to be perfectly understoodby the deponent.“ (underlining provided).

The deponent’s affidavit has not complied with the strict mandatory requirements of O.41, r.3 and the issue before this court is whether the affidavit can be used in evidence withoutthe certificate under this rule.

Learned Counsel for the applicant submitted that the court can use this affidavit if leave is granted, while the respondents submitted that it is the discretion of the court whether or not to usethis affidavit.

Upon a proper construction of O.41, r.3, I have no hesitation in holding that the requirements of O.41, r.3 are clearly and obviously mandatory in nature. In order to use an affidavit under O.41, r. 3, it is absolutely essentialthat the conditions prescribed therein have been meticulously complied with, as the person administering the oath (in Malaysia, usually a commissioner for oaths, a magistrate or a sessions court judge) must certify that the aforesaid three conditions have beencomplied with, failing which the affidavit shall not be used in evidence.

The pre-requisite for such a mandatory requirement of O. 41, r. 3 is “where it appears to the person administering the oaththat the deponent is illiterate or blind“. In the rules, the word “illiterate“ is not defined or explained. It is therefore necessary to refer to the natural, ordinary and popular meaning of this word as found in the dictionary. I have referred tothe Shorter Oxford English Dictionary where the word “illiterate“ means one who is unable to read. In the context of the affidavit in Bahasa Malaysia as affirmed by the deponent, it must mean that the deponent is unable to read Bahasa Malaysia. In thecircumstances, prima facie the affidavit of the deponent shall not be used in evidence unless there is evidence to the effect that the deponent is literate in Bahasa Malaysia or unless a certificate in accordance with O. 41, r. 3 has been affixed onthe affidavit itself.

In order to use it as evidence, the court has to be satisfied that the affidavit was read to and explained to and appeared to be perfectly understood by the deponent. There is nothingin the affidavit to indicate that the affidavit appeared to be perfectly understood by the deponent.

In the circumstances, I find that the deponent’s affidavit is defective and under O.41, r. 3, it shall not be used in evidence. In VOON MOW CHEN v. MENTERI DALAM NEGERI & ANOR [1993] 2 A.M.R. 38 pg. 2205, VINCENT NG KIM KHOAY, J.C. (as he then was) held, inter alia, that “defective affidavits should not be used in habeas corpus applications, as affidavitevidence are the sole evidence to enable the court to arrive at a just decision in such applications. If there is a flaw in the affidavit, same cannot be admitted in evidence without leave of the court. A petition for habeas corpus is a writ petition, of a quasicriminal nature, thus attracting a higher standard of proof and requirement. As such the admi