AMRI CHE MAT
[122] Returning to the issue of the standard of proof applicable
in an inquiry of death, a useful comparison may be made with
the standard applied in preliminary inquiries into cases (namely,
capital offences) triable by the High Court before Chapter XVII,
ss 138 151 of the CPC were deleted by Act A908. For purposes
of commi�al of a case for trial in the High Court, reliance used
to be placed by the prosecu�on on the phrase sufficient grounds
for commi�ng as provided for by the former s 140(i) of the CPC.
What this meant was that there must be credible evidence
shown by the prosecu�on for a case to be commi�ed for trial.
The standard of proof in a preliminary inquiry had always been
on a standard lower than that of beyond reasonable doubt. In
Public Prosecutor v Puspanathan a/l Sinnasamy & Ors [1996] 4
MLJ 165, Mohd Hishamudin J (now JCA) had occasion to say that
for the purposes of the preliminary inquiry, the prosecu�on was
only required to adduce sufficient evidence iden�fying the body
of the deceased, and was not required to prove this beyond
reasonable doubt. In a criminal trial, as opposed to a mere
preliminary inquiry, the standard of proof is higher (see p 169 E
F,H I; Teay Wah Cheong v Public Prosecutor [1964] 1 MLJ 21 and
Fazal Din v Public Prosecutor [1949] MLJ 123 dis�nguished).”
66.
Thus, the standard of proof applicable in a Public Inquiry under Sec�on 12 of the
Act is on a balance of probabili�es (that is the standard or quantum of proof in a
civil case). In essence, this means that the Panel is en�tled to accept and rely on
evidence which is probably true and which does not need to be proved to be
beyond reasonable doubt.
Burden of Proof in Cases of Enforced Disappearance
67.
On the burden of proof, that is, on whose shoulders lie the burden of proving the
case, the approach taken in interna�onal human rights cases on enforced
disappearances, is illustra�ve to show that the burden of proof lies on the State
itself. In the following cases, it was held by the various courts accordingly:
67.1.
Bamaca-Velasquez v Guatemala 22 , the Inter -American Court of Human
Rights held:
22
IACHR Series C No 70 (Official Cita�on); [2000] IACHR 7 (Other Reference); IHRL 1453 (IACHR 2000) (OUP reference);
IACHR Series C No 91 (Official Cita�on); [2002] IACHR 1 (Other Reference); IHRL 1474 (IACHR 2002) (OUP reference)
104