The position of electronic evidence under islamic law and Malaysian law of evidence

Abstract

In the 21st century, documents are now no longer only on paper and ink but in discs, memory card in computers, smartphones etc. which can be extracted and forwarded to others in tangible and intangible forms, i.e. electronically. The use of electronic document is now so widespread that laws are made to accommodate them. In this era of big data, electronic evidence has been recognised as a form of documentary evidence and laws that govern electronic evidence have been adapted in terms of its authenticity and credibility (weight or it evidential value). As far as Islamic law is concerned, it recognizes documentary evidence as one of the type of evidence. Correspondingly, the earlier Islamic scholars had no opportunities to discuss it in their fiqh books. Their definitions of the documentary evidence is about something that can be understood, useful and contain information. From the evaluation, researcher finds that electronic evidence is recognises as documentary evidence from Islamic and Malaysian law perspective. The definition of documentary evidence by earlier Islamic scholars are dynamic and flexible that they can accommodate electronic evidence as a form of documentary evidence. Therefore, electronic evidence subject to the evidentiary rules i.e. best evidence rule, hearsay rule and authentication rule. Discussions from the perspectives of these early Islamic scholars, modern scholars and common law scholars shall be considered/ evaluated/ examined to determine the status of electronic evidence under Islamic law and its reception in today’s legal system. The relevance laws pertaining to electronic evidence such as Evidence Act 1950, Computer Crimes Act 1997 and Communications and Multimedia Act 1998 and other jurisdictions applying common laws and Islamic laws are relevant to this research. This research is qualitative research which used data collection and data analysis including library research and semi-structured interview. Findings in this research were used deductively, inductively and comparatively.