SPECIAL MEASURESâ€™ APPLICATIONS FOR VICTIMS AND VULNERABLE AND INTIMIDATED WITNESSES IN MALAYSIA: NEW FRONTIERS TO RIGHT TO A FAIR TRIAL?

Abidah Abdul Ghafar

Authors

Abidah Abdul Ghafar Universiti Sains Islam Malaysia

Abstract

Special treatment for victims and vulnerable and intimidated witnesses (VIWs) in a criminal process has developed over time in Western countries. The development of rights of victimsâ€™ and VIWs and awareness on their needs and interests in pre-trial process and court proceedings has initiated the use of special measuresâ€™ application. In England and Wales, some measures to lessen stress and trauma of such witnesses undergoing a criminal process were introduced into the legislations. Yet, as many other Asian countries, Malaysia developed her victimsâ€™ policy only in 1990s and issues relating to the protection of VIWs were raised within the criminal justice system just recently. The tendency to put the standpoint into practice in the Malaysian legal system is demonstrated in the establishment of the Evidence of Child Witness Act 2007 (ECWA 2007) and the amendment of Section 272B of the Criminal Procedure Code. On the other hand, it is also arguable that special measuresâ€™ applications for victims and VIWs will erode the right of defendants to a fair trial. This article aims at evaluating the current position of victimsâ€™ and VIWsâ€™ rights and legal protection in the Malaysian criminal justice process. It elaborates on the rights of victims and other VIWs to special measuresâ€™ applications in pre-trial process and court proceedings. Special measures such as live TV-link, screens, removal of formal attire, intermediaries and visual aids communication are potential to accommodate victimsâ€™ and VIWs to give testimony in court. The use of video-recorded evidence is also evaluated as one of the means to facilitate traumatized victims and VIWs to give evidence and testimony. The possibility to enhance the use of special measuresâ€™ applications as one of the ways to advocate the right to a fair trial of victims and VIWs, without eroding the rights of the defendants, is also highlighted in this article.

Keywords: Vulnerable, intimidated, special measures.

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Author Biography

Abidah Abdul Ghafar, Universiti Sains Islam Malaysia

Abidah Abdul Ghafar is a senior lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia (USIM). She graduated from International Islamic University Malaysia for the degrees of Bachelor of Laws in 1996 and Bachelor of Laws (Shariah) in 1997. Upon graduation, she started her legal pupillage at Messrs Letchu Suppiah & Co. She was enrolled as an advocate and solicitor in High Court of Malaya in 1998. She later pursued her studies at the Faculty of Islamic Studies, Universiti Kebangsaan Malaysia (UKM) and obtained Master of Islamic Studies (Syariah) in 2001. She started her academic career in 2000 as a lecturer at the School of Business Administration, Kolej Universiti Islam Selangor (KUIS) [formerly known as Kolej Islam Darul Ehsan (KISDAR)] and appointed as the Head of Department of Muamalah. She joined the Faculty of Syariah and Law USIM in March 2002. Her PhD research entitled â€˜Legal Protection for Vulnerable and Intimidated Witnesses (VIWs) from the Perspective of Human Rights: An Analysis in the Malaysian Criminal Justice Systemâ€™ was accepted to receive a PhD degree from University of Leicester in 2012. Abidah is teaching various law and shariah law subjects in undergraduate and postgraduate level including family law and Islamic family law, communication law, Islamic law of evidence, administration of Islamic law and procedures in syariah courts, shariah judicial and advocatory practice, and law on halal. Abidah has a wide range of research interest in the area of child law, child and juvenile justice, family law and Islamic family law and administration of Islamic law. She has received various research grants from USIM (2003-2005), Ministry of Higher Education under Fundamental Research Grant Scheme (FRGS) (2013-2017), Committee for Legal Reform (JPUUM), Legal Affairs Division of Prime Minister's Office (2013-2015) and Negeri Sembilan Islamic Religious Council (MAINS) (2014-2016). She also involves in various administrative tasks and positions at the faculty.

Area of interest: criminal justice, child law, family law and Islamic family law, comparative studies of Syariah and law.