Establishing Presumption of Death of a Missing Person: A Tale of Two Presumptions

Abstract

In Malaysia, a corpse must be located before a death may be officially recorded. However, if a court order is required as the assumed dead individual's body has not been located, then the person must be considered legally absent. In order to determine the legal status of a missing person who is considered dead in Malaysia, this article will analyse the two presumptions under the current laws, both of which originate from common law concept. This is because the courts, using the presumption principle, will often rule that a missing person is presumed dead after a certain amount of time has passed and when no new evidence has surfaced suggesting the individual is alive. The legislative provisions of Malaysian Evidence Act 1950 and reported cases were analysed in this article using a qualitative doctrinal legal research approach. This article finds that the presumption of death under section 108 of the Malaysian Evidence Act 1950 provides a useful counterpoint to the presumption of life under section 107. The Malaysian Evidence Act 1950 has provided conclusive evidence that the common law idea has taken hold in Malaysia. Only two elements that were firmly established in common law were incorporated into Section 108. These two elements are that the person who is missing must not have been heard of for a period of seven years, and that the person who is missing must not have been heard of during that time by those who would naturally have heard of him. If these two elements are met, then the person who is missing is considered to be missing. The omission has been addressed as a result of the court ‘s decision even though section 108 of the Malaysian Evidence Act 1950 is silent on the third element of the common law principle on the necessity to undertake proper inquiries in demonstrating the absence of the missing person.