The current justice system is daunting for adults, and much more so for children. Yet, children who find themselves in these settings often have to face procedures and protocols designed for adults. This puts them at a significant disadvantage. Children are inherently vulnerable, and the justice system as a result is obligated to 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, reducing the trauma associated with court appearances. The stress a child victim and their families face often results in many deciding to give up and walk away from seeking justice.
Levelling the path to justice
Children currently benefit from special measures in the Evidence of Child Witness Act, which aim to help them provide their best evidence during the legal process. However, these measures are not always consistently applied, leading to a courtroom environment that can still be intimidating and stressful for young witnesses. This Parliament sitting, amendments are being proposed to ensure these special measures are consistently applied to create a more child friendly environment for children.
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.
With these proposed amendments, courts will also no longer be required to treat children’s evidence with additional suspicion just because of their age. As with adults, all children will be treated as capable of giving evidence in court unless there’s some reason to doubt their evidence, and each child's evidence will be assessed on its merits.
Violence against children, and sexual offences in particular, often occurs in secrecy and without witnesses. The current rules for children giving evidence in court create significant barriers to holding perpetrators accountable. Additionally, children from minority groups including children with disabilities, indigenous children, as well as migrant and refugee children, may face unique challenges when seeking justice. It is crucial to recognize and address these barriers to ensure all children have equitable access to justice.
Recognizing children’s right to justice
There is public interest in ensuring that child witnesses are treated fairly and can tell their story without being further victimized or traumatized. When child witnesses are protected and their needs are met, justice is served in the individual case. It also reinforces values of Keyakinan (trust) and Ihsan (compassion), Madani principles that make society stronger. It sends a powerful message that the justice system is committed to protect the vulnerable and uphold the rights of all.
Let us ensure that the legal system nurtures and protects children, leading us towards a future where justice is accessible and fair for all. 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.
Building a stronger justice system
As we turn our attention to the amendments being proposed to the Evidence of Child Witness Act during this Parliamentary sitting, let us remember our duty to ensure that the law safeguards and empowers child witnesses.
Dato’ Sri Azalina Othman Said, Minister in the Prime Minister’s Department (Law and Institutional Reform), has been leading efforts to uphold the best interest of the child in the judicial setting. Tabling these amendments is a step to make the judicial process more child-friendly.
This year marks 70 years of UNICEF’s presence in Malaysia, coupled with a 60-year partnership with the Government. Our efforts continue so that the path to justice for children is made straight, laws are strengthened and perpetrators of crimes against children are held accountable.
Amending the Evidence of Child Witness Act is not just a legal necessity; it is a moral imperative. By providing children with the support they need to testify, we ensure that children are able to provide their best evidence in court. This promotes a more accessible and equitable justice system and fosters a fair and just society. Let’s commit to a future where the criminal justice system truly upholds the best interests of the child.
* Robert Gass is the UNICEF Representative to Malaysia on the amendments to the Evidence of Child Witness Act
** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.
