Amendment to Evidence of Child Witness Act protects well-being of minors: advocacy groups

Groups say it aims to provide more supportive legal framework for child witnesses, aligning with international standards, best practices, ensure child is in safe environment to provide best evidence

The ongoing amendments to the Evidence of Child Witness Act 2007 (ECWA) will enhance the rights of minors and grant the court the power to stop improper lines of questioning by lawyers, among others. – Pixabay pic, July 9, 2024

KUALA LUMPUR – The ongoing amendments to the Evidence of Child Witness Act 2007 (ECWA) will enhance the rights of minors and grant the court the power to stop improper lines of questioning by lawyers, among others.

The Sexual Offences Against Children and Evidence of Child Witnesses Advocacy Group said that the amendment is also crucial in enhancing the protection and well-being of child witnesses when they testify in court.

They said significant development aims to provide a more supportive legal framework for child witnesses, aligning with international standards and best practices.

This amendment will also enable the court to hear the best evidence from the child, the group said.

“We believe 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.

“As Malaysia takes a commendable 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.

“These reforms reflect a broader dedication to upholding justice and protecting vulnerable members of society,” said the statement signed by 11 advocacy groups, including Association of Women Lawyer (AWL), Voice of the Children (VoC) and Monsters Among Us (MAU).

The groups added that they have held several engagements with the Prime Minister’s Department Legal Affairs Division, where they have raised several unanimous proposals to be included in the amendment. 

This includes the replacement of the “vague” and “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.

They also suggested that the legal affairs division consider setting 12 as the standard age where children are presumed competent to testify under oath, as well as to remove the distinction between sworn and unsworn evidence by child witnesses, as a child’s promise to tell the truth has the same effect as an oath.

“We also suggested for the court and judicial officers to give mandatory directions tailored to child witnesses, at pre-trial case management, 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 group also proposed 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.”

ECWA, or also known Act 676 was enacted to provide special child-friendly procedures for child witnesses who testify in court to reduce intimidation and distress as well as to help them give their best evidence. – July 9, 2024