Reassessing the Requirement of Two Expert Witnesses in Malaysian Syariah Courts: Legal Ambiguities, Fiqh Principles, and Legal Reform

Abstract

The Syariah courts in Malaysia face ongoing challenges in establishing a clear standard for the admissibility of expert evidence, particularly concerning the requirement for two individuals to be presented as expert witnesses. The absence of specific guidelines regarding the necessary number of experts has led to confusion regarding the relevance and admissibility of such evidence. This study focuses on Section 33(3) of the Syariah Court Evidence (Federal Territories) Act (Act 561), which provides for the requirement of two experts, although the phrase “if possible” within the provision opens the door to conflicting interpretations. This study adopted a qualitative methodology, concentrating on the content analysis of statutory provisions and authoritative classical Islamic jurisprudence (fiqh) sources. The findings reveal that within Islamic jurisprudence, the weight of expert opinion is evaluated based on the authority and competence of the expert rather than the number of experts alone. A literal implementation of the two-expert requirement may hinder the smooth conduct of proceedings and lead to injustice, especially for parties with limited resources. This study recommends an amendment to the relevant provision to better reflect the principles of Islamic justice and align with contemporary judicial practices.