We Encourage MPs to Support Amendments to the Evidence of Child Witness Act 2007

By Dato’ Dr Amar-Singh HSS

Amendments to the Evidence of Child Witness Act 2007 (ECWA 2007) have been tabled in the Dewan Rakyat this week I am delighted that the amendments offer more support and rights to child witnesses in Malaysia. Revising the ECWA is essential for improving the safeguards and welfare of child witnesses in legal proceedings. This update is key to aligning our legislation with international norms and practices grounded in evidence-based practices. Such changes will ensure that the judiciary can consider the most reliable and complete evidence provided by children. I would like to thank Datuk Seri Azalina Othman, the Minister in the Prime Minister’s Department (Law and Institutional Reform) for initiating and leading the charge for these vital amendments.

Some have been concerned with the lack of local research on children in the context of the courts and their understanding and sharing of evidence. I have worked with thousands of children over more than 40 years in child protection. My experience and that of my local paediatric colleagues provides a clear foundation on the issue.

Children’s Competence as Witnesses

I have no doubt as to the competency of children. From my experience, children as young as four to five years understand most realities and can comprehensively give a description of child abuse and other serious situations that have happened to them. By the age of 8 years, I find almost all children understand serious issues like dying and can give detailed accounts of abuse that they have experienced. Only children with serious intellectual disabilities and those with psychiatric disorders, that impair thinking, will need to have their competency assessed.

Elimination of the Legal Requirement of Corroboration

In my experience I have not found children to tell falsehoods more often than adults. In fact, children are more likely to tell the truth and less likely to have devious explanations compared to adults. Children by the age of four to five years are clearly able to distinguish between fact and fiction and are not prone to fantasy about sexual activities or acts.

Very young children, even under the age of 5 years, are capable of providing accurate information about events they have experienced or witnessed. They are however susceptible to the negative effects of unskilled questioning by adults. More often than not, inaccuracies in very young children’s testimony are a result of poor questioning by adults such as repeated interviews in an inappropriate manner rather than deliberate lies by children. The competence and credibility of a very young child’s testimony in court depends on the skills of the interviewing team i.e. the conditions under which the testimony is elicited.

Using Pre-Trial-Case Management (PTCM) to Give Directions on How Children will be Examined

I fully support the use of pretrial case management to provide directions for how children will give evidence, as it will offer support to children and the court officers involved. It will reduce the distress to children. In my experience, children are not treated fairly in the local criminal justice system. The courts are generally not child friendly and children are often intimidated by the court environment. This often results in children not being able to express themselves adequately and deters many children from providing evidence in court. This often results in an unintentional secondary victimization of the child by the courts.

These amendments will not give an unfair advantage to children in court. It is the reverse that will happen. Children will now be given a reasonable advantage to present their evidence in court, on par with what adults receive.

I hope that Members of Parliament will support these amendments. It is a step forward in according to children their basic rights and creating a child-friendly court environment. It will encourage children and families to report crimes against children as they now know that the child’s voice and evidence can be heard and valued in court.