APPLICATION OF PRINCIPLES OF CHAIN OF EVIDENCE AND CHAIN OF CUSTODY DURING STORAGE AND FORENSIC EXAMINATION OF ELECTRONIC DOCUMENTARY EVIDENCE IN SHARIAH CRIMINAL CASES IN MALAYSIA

Abstract

Electronic documentary evidence is submitted to prove the facts of the case and to assist the court in making a good judgment. Nevertheless, the admissibility of such evidence in Shariah criminal cases depends on the competence of religious enforcement officers in preserving the integrity of electronic documents during the process of storage and forensic examination at the investigation stage. Religious enforcement officers must ensure that both the chain of custody and chain of evidence remain intact during the conduct of both processes, so that both amply support the admissibility of the document during the trial later. However, Shariah texts make no reference to the processes of storage and forensic examination of electronic documentary evidence in ascertaining proof and strength of qarinah evidence. In addition, legal provisions in the enactment do not appear to make any reference to these principles and processes. Such a scenario has caused some confusion regarding their acknowledgment in determining the admissibility of electronic documentary evidence in the Shariah court. This article uses a legal research framework developed qualitatively, with library research method used in data and information collection. These data and information are subsequently analysed using content analysis and critical analytical methods. The article aims to identify the principles of Islamic evidence and legal provisions under the Shariah Criminal Procedure Enactment and analyses existing problems relating to the process of storage and forensic examination of electronic documents. It suggests that a standard operating procedure on the processes of storage and forensic examination of electronic documentary evidence be developed in addressing issues relating to the integrity and admissibility of electronic documentary evidence in Shariah criminal trials.