Debate On Witness Protection Bill 2008

Yang Berhormat Tan Sri Yang Dipertua,

I am grateful to be given the opportunity to participate in the debate on Witness Protection Bill 2008.

Introduction

1. The ability of a witness to give testimony at a trial without fear of intimidation or reprisal is essential to maintaining the rule of law. Increasingly, countries are enacting legislation or adopting policies to protect witnesses whose cooperation with law enforcement agencies or testimony in court would endanger their lives or those of their families.

2. Protection may be as simple as providing a police escort to the Court room, offering temporary residents in a safe house or using modern communication technology such as video conferencing for testimony. The origins of the witness protection programme started in the United States of America in the 1970s as a legally sanction procedure to bring justice against the Mafia and other powerful criminal organizations. The cooperation of the witness had become critical to the successful prosecution of the offender but because of the powerful capabilities of the criminal group, it became necessary for the government to provide for the safety of the witness. This protection came in the form of resettlement of the witnesses under a new identity and including a new place of residents either in the same country or a foreign country.

The Malaysian Witness Protection Bill 2008

3. I welcome the enactment of a Witness Protection Act to maintain the rule of law and to provide our citizens safety from criminals. However, there appears to be several questions that needs to be answered to ensure that this Witness Protection Act is effective and is also fair to the accuse so that no innocent man will be condemned by a witness telling lies to be protected under the programme.

Protection Against Whom

4. The Witness Protection Programme was started to combat organized crime in USA against the Mafia or in Hong Kong against the triads. I ask the Honourable Minister to provide us with the statistics and information as to the existence of organized crime in Malaysia and the instances in which prosecutions against leaders of the crime syndicates have failed because the witnesses were threatened and did not appear in Court or was killed or kidnapped to prevent them from giving evidence. The Witness Protection programme is a costly programme which includes resettling and maintaining the witness for a substantial period of time which may include the rest of his life. Therefore, the proper question that must be asked is whether Malaysia is having such a severe problem with organized crime that justifies the country in incurring such expenses.

The Costs: Need versus Want

5. This raises the question which I hereby ask the Honourable Minister to inform this House what is the expected costs of this programme. I see from the proposed provisions that the witness is to disclose his liabilities and his earnings. Does this mean that the Government will pay for all his liabilities including his housing loans and businesses loans and other liabilities and would also provide him with a salary that he would earned. In many cases, like America, the witness who is given the protection was a member of the criminal syndicate itself and had participated in the crime. If under this Act, the witness will not only be given a pardon from his crimes but also have his liabilities repaid and his future salaries ensured without having to work, it means under this Act, crime pays. It will be very lucrative to live a life of crime and then come to Court to finger someone and this may lead to abuse because of the benefits that the witness will obtain.

6. The decision whether to set up a witness protection programme must be reached on the basis of a thorough analysis of factors relating to the level and types of criminality within our Malaysian society, the frequency of violent against witnesses in criminal proceedings and the demonstrated ability and political will to prosecute high profile crimes and the availability of resources and finance to do so.

7. The Act has not specify what is the protection programme. The Act must specify at the minimum :

a.The protection measures;

b.The conditions for admission to the programme;

c.The procedure;

d.The authority and powers of the persons managing the programme;

e.The reasons for terminating the programme and withdrawal of protection of the witness;

f.Rights and obligations of the parties;

g.Confidentiality of the programmes.

Funding

8. I ask the Honourable Minister to inform this House the costs for the setting up and operating the witness protection programme. What is the costs of:

a.The expenses of setting up the unit and premises and the offices?

b.What is the relocation and resettlement costs for the witness?

c.The expected payment and salaries to maintain the witness?

d.The costs for the various medical and expert counseling and examination?

9. I would then ask the Honorable Minister to explain why this proposed costs and financial obligations that is to be incurred cannot be used:

a.For setting up more police stations?

b.Setting up of police beat;

c.Employing more policemen?

d.Putting more police personnel into crime prevention?

e.Ensuring that the ratio of policemen to the population is in accordance with the international standards ratio of 1: 250.

f.Providing more police cars and equipment to the police;

g.Setting up additional police training schools to increase the intake of police personnel;

h.What is the percentage of this costs compared to the budget of the police?

Corruption

10. It cannot be denied that corruption is one of the biggest problems in this country. It is in the nature of corruption that the offenders are persons who will be holding senior positions in governments and even in the enforcement agencies themselves. This is why we have the recommendations IPCMC and Enforcement Agencies Integrity Commission. How can the witness be assured that the persons managing this programme are independent from the influence of the persons which may be holding very high and powerful positions. We have the case of the private investigator, Balasubramaniam who after giving the first statutory declaration is called to the police station and a few days later and then holds a press conference to give a second statutory declaration contradicting the first and is now missing. What provisions and steps are to be taken to ensure the independence of those in charge of the witness protection programme.

Who is to be Protected?

11. The Act does not provide for a comprehensive definition of a “witness”. In many cases, investigations can only be carried out if information is provided. Therefore, an informant is just as important as a witness. There are no provisions in the Bill to provide for protection of informants. In Australia, Austria, Canada, Latvia, the Netherlands, Norway, the United Kingdom and Northern Island, informants can be admitted to witness protection programme. The situation is different in Germany, Slovakia and the United States where only witnesses who testify in Court may be eligible for witness protection.

The Crime

12. Besides organized crime, drug trafficking and corruption, there are also other offences which should provide protection to witnesses. These include money laundering, obstruction of justice, trafficking in persons and smuggling of migrants. Malaysia has been named as one of the countries in which offences relating to trafficking in persons and smuggling of migrants have become serious proportions.

Relocating Criminals

13. One of the problems that have arisen in the Witness Protection programme in the government giving the witness a new identity in a new relocation is that the witness himself is a criminal. Many of them have after being given the new identity in the new location has returned to a life of crime often causing harm and losses to the persons in the new location. How does the Government propose to resolve this issue and will the Government take responsibility for knowingly putting a serial offender into an innocent neighbourhood.
Thank you.


Date: 23 March 2009

William Leong Jee Keen

Member of Parliament Selayang