Marking a milestone in witness protection: The Witness Protection Act 2009

The recently passed Witness Protection Act 2009  marks a milestone in the realm of witness protection in Malaysia. From simply watching legal serials we know that this realm in particular deserves close scrutiny, for evidence tendered by witnesses, particularly in criminal cases, are crucial to the successful disposition of a court case in a just manner. Sometimes however, witnesses might have their lives compromised in lieu of their position as bearers of evidence. Many countries around the world such as the USA and the UK have therefore established Witness Protection Programmes for these witnesses, and the passage of the Act mentioned above marks Malaysia’s own foray into the trend. This article therefore attempts to identify the Act’s features.

The long title of the Act is “An Act to establish a programme for the protection of witnesses and for other matters connected therewith.” Section 3 establishes a Witness Protection Programme (“the Programme”) to be administered by a Director General. The Director General and his subordinates are appointed by the Minister charged with the Programme under section 4 of the Act, and section 5 lays down the duties of the Director General and his minions in administering the Programme. Section 7 provides that any witness may apply to the Director General to be included in the Programme and the Director General, after considering the circumstances mentioned in Section 9 (being related to the nature of the offence in trial, the criminal record and the medical condition of the witness) later recommends to the Attorney General under Section 10 as to whether or not the said witness is fit to the programme, and subsection (4) of the section further provides that where an applicant is dissatisfied with the decision of the Attorney General he may further appeal to the Minister for reconsideration. Though not expressly said, the Minister’s decision would probably be final, for Section 23 of the Act bars judicial review of any decision made.

When a witness is successfully included in the Programme, by virtue of Section 13(1), the Director General provides for him or her certain reasonable measures for his safety and welfare. Section 13(2) further provides that such measures may include, accomodation, relocation, a new identity, remuneration, access to education and living expenses. It is also lawful for the witness to claim that his identity for the purposes of any law to be the new identity given by the Director General under Section 15(2). Section 17 makes it an offence for anyone with access to the Programme, including the Director General, to disclose the original identity of the witness once he has been given a new identity, with the punishment proscribed being prisonment for a term not exceeding 20 years. Such a offence is further reinforced in Section 26 of the Act. Under Section 26(2) it is also an offence for a witness to disclose of his own accord his own original identity or any details about how the programme operates, with the proscribed punishment being a jail term of up to 10 years.

Protection afforded to a witness terminates when any of the four circumstances mentioned in Section 16(1) arises, that are, knowingly giving false information, conduct threatening to the integrity of the Programme, the reasons for which the protection is afforded no longer exists, and when the Director General believes there is no reasonable justification for the witness to remain in the Programme. The Director General would then again recommend to the Attorney General whether to terminate the protection afforded to the witness. The witness again has a right of appeal to the Minister by virtue of Section 16(8). By virtue of Section 24, no action shall lie and no suit shall be brought against those discharging their duties under the Act in good faith or for the reasonable belief that such actions complained of were nessacary.

[The Witness Protection Act 2009 came into force on 15 April 2010 vide P.U.(B) 188/2010. – Ed]