The best interests of children need to be upheld in the justice system, says Gass. Photo: Unicef
In a joint statement, the Sexual Offences Against Children and Evidence of Child Witnesses Advocacy Group (SOAC & ECWA) have applauded the tabling of amendments to the Evidence of Child Witness Act 2007 (ECWA) in the Dewan Rakyat on Jul 9.
"These amendments represent a significant and progressive step towards ensuring a more just and supportive legal framework for child witnesses in our country, and we're grateful to Datuk Seri Azalina, for her leadership in introducing and spearheading the initiative,” the statement read.
In 2023, the Minister in the Prime Minister’s Department (Law and Institutional Reform) also led amendments to the Evidence of Child Witness Act 2007 (ECWA), which now allows for special hearings for child witnesses and grants Courts the power to stop improper questioning of children.
“Amending the ECWA is crucial in enhancing the protection and well-being of child witnesses testifying in court, bringing the law in line with international standards and evidence-based practice, and we're grateful for her commitment to continually strengthen the legislative framework involving child victims and witnesses of crimes,” the the group said in their statement.The advocacy group believes that under the standard adversarial criminal justice system, there is a mismatch between children’s capacity and the adult-oriented court environment and procedures.
“The contest between a child witness and defence counsel is an inherently unequal one, with child witnesses facing significant disadvantages in court due to their limited language and cognitive development.”
The Evidence of Child Witness (Amendment) Bill 2024 aims to ensure that children in the country's legal system receive equal treatment in line with international standards, said Azalina during the tabling of the bill's second reading recently. Photo: Bernama
The statement was endorsed by CRIB Foundation (Child Rights Innovation & Betterment); ENGENDER Consultancy; Monsters Among Us (MAU); Association of Women Lawyers (AWL); Sarawak Women for Women Society (SWWS); Women's Centre for Change, Penang (WCC); Johor Women's League (JEWEL); Women’s Aid Organisation (WAO); Kemban Kolektif; Voice of the Children (VoC); and All Women’s Action Society (AWAM).“Several engagements have been conducted by the Legal Affairs Division (BHEUU) with this advocacy group in recent years to ensure that the amendments to the ECWA uphold the presumption of innocence and the right to a fair trial for the accused,” the group said. It proposed five measures to be included in the amendment:
The first is to replace the vague, ill-defined Section 17 of the Sexual Offences Against Children Act 2017 and Sections 18 & 133A of the Evidence Act 1950 with updated provisions on children’s competence to testify, namely: creating a rebuttable presumption that every child is competent to testify in court, and enhancing their access to justice because children’s evidence will now be assessed fairly just like any other witness, without being unfairly judged as unreliable only due to their age; setting 12 years old as the standard age where children are presumed competent to testify under oath; removing the distinction between sworn and unsworn evidence by recognising that there is no link between a child’s understanding of the oath and truthfulness because a child’s promise to tell the truth has the same effect as an oath.
The second is to repeal Section 133A of the Evidence Act to allow courts to convict accused persons based solely on a child’s testimony (“uncorroborated evidence”), with judicial discretion to assess the testimony on a case-by-case basis, similar to adult witnesses. Section 18 of the Sexual Offences against Children Act 2017 (SOACA) practices this concept (no requirement for mandatory corroboration) but this is limited to cases involving sexual offences.
The third is eliminating the requirement for judges to warn themselves of the dangers of convicting based solely on a child’s evidence, which is based on an outdated assumption that children are prone to fantasy, are highly suggestible and do not make reliable witnesses.
The fourth is proactively using case management, before commencement of trial, for judicial officers to give mandatory directions tailored to child witnesses, such as age-appropriate questioning and using measures like live link (child witnesses giving live testimonies in a different room), in child sexual abuse cases. These directions are intended to reduce the stress for the child victim, allowing them the opportunity to tell their own story without experiencing further trauma or “secondary victimisation” from the proceedings and assisting them in giving their best evidence.
The fifth is simplifying transcript requirements of a child’s statement to the police, by only submitting a transcript in Bahasa Malaysia. Currently, the law states that a video recording of a child’s police statement can only be used in court if there is a transcript in the language spoken by the child (if not Bahasa Malaysia) and a transcript in Bahasa Malaysia. This amendment is required to address the challenges such as when the language spoken by the child does not have a written form and also delays in the conduct of trials involving children as the responsibility of preparing two transcripts falls on the D11 Investigating Officers.
By Malaysia taking this step towards aligning its legal practices with international standards on treating child witnesses, we believe that our children and their parents will be more likely to report crimes and cooperate with criminal proceedings if they know the child will be protected throughout the process, the statement says.
We must ensure children can give the best possible evidence without undue stress or fear. Special measures are necessary to help them testify, including reducing the trauma associated with court appearances. This is to prevent them from giving up and walking away from seeking justice, says Gass. Photo: Unicef
Meanwhile, also commenting on the Evidence of Child Witness (Amendment) Bill 2024 was Unicef representative to Malaysia Robert Gass who said that that the best interests of children need to be upheld in the justice system.
"Imagine a seven-year-old girl who has experienced domestic violence, a twelve-year-old boy who has suffered sexual abuse or a fourteen-year-old girl who is a victim of physical abuse. Then, imagine them already traumatised by their experiences, being expected to recount their stories in court," he said.
Children, he added, are "inherently vulnerable", and the justice system should "adapt to meet their rights and needs".
“We must ensure children can give the best possible evidence without undue stress or fear: Special measures are necessary to help them testify, including reducing the trauma associated with court appearances. This is because the stress child victims and their families face often results in many deciding to give up and walk away from seeking justice," he said.Gass said that by providing children with the support they need to testify, they can provide their best evidence in court.
However, he added that while children currently benefit from the special measures in the Evidence of Child Witness Act, these measures are not always consistently applied, leading to a courtroom environment that can still be intimidating and stressful for young witnesses.
"Cross-examination is particularly distressing because it is confrontational and intimidating. Children are no match for an experienced defence counsel. Thus, their evidence can easily be undermined by confusing, repetitive, or overly aggressive questioning.
“To ensure a fair trial, it is important to manage the way children are questioned by using pre-trial case management," he said.The current rules for children giving evidence in court create significant barriers to holding perpetrators accountable. Also, children from minority groups including children with disabilities, indigenous children, as well as migrant and refugee children, face unique challenges when seeking justice, he added.
“We must ensure that the legal system nurtures and protects children. Article 3.1 of the Convention on the Rights of the Child, to which Malaysia is a signatory, provides that in all actions concerning children, including in the courts of law, the best interests of the child shall be a primary consideration,” he concluded.
