Press Release – 9 July 2024

We, the Sexual Offences Against Children and Evidence of Child Witnesses (SOAC & ECWA) Advocacy Group welcome the tabling of amendments to the Evidence of Child Witness Act 2007 (ECWA) in the Dewan Rakyat today. We extend our heartfelt thanks to Datuk Seri Azalina Othman, the Minister in the Prime Minister’s Department (Law and Institutional Reform), for her leadership in introducing and spearheading these amendments which represent a significant and progressive step towards ensuring a more just and supportive legal framework for child witnesses in our country. The minister also led amendments to the same Act last year, which now allows for special hearings for child witnesses and grants Courts the power to stop improper questioning of children. We are grateful for her commitment to continually strengthen the legislative framework involving child victims and witnesses of crimes.

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. It will enable the Courts to hear the best evidence of the child.

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.

Several engagements have been conducted by 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. This group unanimously proposed the following measures to be included in the amendment:

1. Replacing 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:
   (i) Creating a rebuttable presumption that every child is competent to testify in court, enhancing their access to justice. Children’s evidence will now be assessed fairly just like any other witness, without being unfairly judged as unreliable only due to their age.
   (ii) Setting 12 years old as the standard age where children are presumed competent to testify under oath.
   (iii) 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. A child’s promise to tell the truth has the same effect as an oath.
2. Repealing 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.
3. 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.
4. 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.
5. 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 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.

Once again, we applaud the Malaysian government for its commitment to protecting the rights of children and creating a more child-friendly legal environment. These reforms reflect a broader dedication to upholding justice and protecting vulnerable members of society.

We also record our appreciation to BHEUU for their continuous efforts to engage with all stakeholders from the outset in drafting this amendment and are happy that our feedback was taken constructively in the drafting of the finalised amendments. Our recommendations were developed through extensive research and lived experiences in our respective fields. We believe these proposals will further strengthen the Act and enhance its effectiveness in protecting child witnesses. We continue our commitment to working collaboratively with the government, legal professionals, and other stakeholders to ensure that these reforms are fully realised in practice.

Endorsed by:

List of Signatory Organizations:

1. CRIB Foundation (Child Rights Innovation & Betterment)
2. ENGENDER Consultancy
3. Monsters Among Us (MAU)
4. Association of Women Lawyers (AWL)
5. Sarawak Women for Women Society (SWWS)
6. Women’s Centre for Change, Penang (WCC)
7. Johor Women’s League (JEWEL)
8. Women’s Aid Organisation (WAO)
9. Kemban Kolektif
10. Voice of the Children (VoC)
11. All Women’s Action Society (AWAM)