The truth about statutory declarations

By Ding Jo-An, The  Nut Graph

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.

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 AzizBalasubramaniam to openly challenge the AG to charge him, stressing that his second SD contained “a pack of lies”. revealed that investigations into Balasubramaniam’s SDs have been closed after “careful consideration”. This has led

I swear…

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?

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.