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1 PART I PRELIMINARY-1. Short title and commencement.

(1) This Act may be cited as the Witness Protection Act 2009 .

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette .

2 PART I PRELIMINARY-2. Interpretation.

In this Act, unless the context otherwise requires-

  "enforcement agency"  includes a body or agency that is responsible for the enforcement of laws relating to the prevention, detection and investigation of any offence;

  "Register"  means the Register of Participants maintained under section 11;

  "Director General"  means the Director General of Witness Protection appointed under subsection 4(1);

  "Minister"  means the Minister charged with the responsibility for Witness Protection Programme;

  "Registrar"  means the Registrar of Witness Protection appointed under subsection 11(1);

  "participant"  means a witness who has been included in the Programme;

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3 PART II WITNESS PROTECTION PROGRAMME-3. Establishment.

There is established a Witness Protection Programme to be maintained by the Director General.

4 PART II WITNESS PROTECTION PROGRAMME-4. Appointment.

(1) The Minister may appoint a Director General and a Deputy Director General of Witness Protection from amongst members of the public services.

(2) The Minister may appoint such other person or persons, as he deems fit, to assist the Director General in carrying out the purposes of this Act.

(3) Every person appointed under subsection (2) shall be subject to general direction, control and supervision of the Director General and shall have and exercise all the powers of the Director General under this Act except those referred in subsections 12(1) and 15(1).

(4) In the event that the Director General is absent or unable to act due to illness or any other cause, the Deputy Director General shall exercise the powers of the Director General under subsections 12(1) and 15(1).

5 PART II WITNESS PROTECTION PROGRAMME-5. Functions.

(1) The Director General shall be responsible for the recommendation of witnesses to whom protection and assistance may be provided under the Programme.

(2) The Director General may arrange or provide protection and other assistance to a witness or participant under the Programme.

6 PART II WITNESS PROTECTION PROGRAMME-6. Dduty to provide assistance.

(1) Notwithstanding any written law to the contrary, a person shall provide to the Director General, on the Director General's request, any statement, record, other document or other form of assistance that may assist the Director General in performing his functions under this Act.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding six months or to both.

(3) Notwithstanding any written law to the contrary, no proceedings or action shall be taken against a person who acts in compliance with subsection (1).

7 PART II WITNESS PROTECTION PROGRAMME-7. Application for inclusion in the programme.

(1) Any witness may apply to the Director General to be included in the Programme.

(2) An enforcement agency may, with the written consent of a witness, apply to the Director General that the witness be included in the Programme.

(3) if a witness is under eighteen years of age, a parent or guardian of the witness may apply on his behalf to be included in the Programme.

(4) Upon receipt of an application under this section, the Director General may provide interim protection and assistance to a witness.

8 PART II WITNESS PROTECTION PROGRAMME-8. Witness to disclose certain matters.

(1) In an application under section 7, a witness shall-

(a) disclose to the Director General details of all outstanding legal obligations of the witness;

(b) disclose to the Director General details of any outstanding debts of the witness, including any outstanding tax;

(c) disclose to the Director General details of the criminal history of the witness which includes orders relating to sentences imposed on the witness;

(d) disclose to the Director General details of any civil proceedings that have been instituted by or against the witness;

(e) disclose to the Director General details of any bankruptcy proceedings that have been instituted against the witness;

(f) inform the Director General whether the witness is an undischarged bankrupt under the Bankruptcy Act 1967 [ Act 360 ] and, if the witness is an undischarged bankru

9 PART II WITNESS PROTECTION PROGRAMME-9. Factors to be considered.

(1) The Director General in deciding whether to recommend that a witness is to be included in the Programme shall consider the following:

(a) whether the witness has a criminal record, particularly in respect of crimes of violence, and whether that record indicates a risk to the public if the witness is included in the Programme;

(b) the result of a medical, psychological or psychiatric examinations conducted under subsection 8(2);

(c) the seriousness of the offence to which the evidence or statement of the witness relates;

(d) the nature and importance of the evidence or statement of the witness;

(e) whether there are alternative methods of protecting the witness;

(f) the nature of the perceived danger to the witness;

(g) the nature of the relationship of the witness to other witnesses being selected for inclusion in the

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Legal Commentary on WITNESS PROTECTION ACT 2009 - Section 9

Introduction

Section 9 of the Witness Protection Act 2009 (Malaysia) addresses the procedures and legal framework for providing protection to witnesses, ensuring their safety during legal proceedings, and facilitating their testimony without fear of retaliation. It is a crucial component of the Act, which aims to establish a comprehensive witness protection program to combat witness intimidation and enhance the integrity of the justice system.

What does Section 9 Say

While the specific wording of Section 9 is not provided in the sources, it generally pertains to the procedures, conditions, and legal authority for witness protection measures under the Act. It likely details the circumstances under which witnesses can be protected, the roles of authorities involved, and the legal basis for safeguarding witness identities and testimonies.

Essential Ingredients

• Protection Measures: Provision for safeguarding witnesses, including identity concealment and relocation.
• Legal Authority: Empowerment of designated officials or the Director General to implement protection measures.
• Procedural Framework: Clear procedures for applying, granting, and managing witness protection.
• Confidentiality: Emphasis on maintaining the confidentiality of protected witnesses to prevent threats or intimidation.
• Legal Immunity and Support: Possible provisions for legal immunity or assistance to witnesses under protection.

Scope of Section 9

• Applicability: Applies to witnesses involved in criminal proceedings, especially those at risk of intimidation or harm.
• Protection Extent: Covers various forms of protection, including physical security, identity concealment, and relocation.
• Procedural Aspects: Sets out the process for initiating and executing protection measures.
• Jurisdiction: Operates within the framework of the Malaysian legal system, coordinated with other criminal justice agencies.

Punishment for Section 9

• The sources do not specify explicit punishments for violations of Section 9. However, breaches of witness protection measures, such as revealing protected identities or obstructing protection efforts, may attract penalties under the Act or related criminal laws, including contempt of court or obstruction charges.

Legal Comments

• "Protection" - Section 9 underscores the importance of providing comprehensive protection to witnesses to facilitate truthful testimony and uphold justice [Act 696 - Witness Protection Act 2009].
• "Confidentiality" - The Act emphasizes maintaining the confidentiality of witness identities, crucial for their safety and effective protection [Act 696 - Witness Protection Act 2009].
• "Authority" - The Act grants powers to the Director General and relevant authorities to implement protection measures, ensuring procedural clarity [Act 696 - Witness Protection Act 2009].
• "Procedural Framework" - Section 9 likely establishes procedures for application and approval of witness protection, aligning with the Act’s goal of systematic protection [H. Rept. 111-138].
• "Scope" - The scope encompasses witnesses in criminal cases, especially those vulnerable to threats, to ensure their safety during proceedings [Act 696 - Witness Protection Act 2009].
• "Relocation" - The Act permits relocation of protected witnesses, as supported by similar provisions in the U.S. Witness Security Reform Act [Justice Manual | 9-21.000].
• "Legal Immunity" - The Act may provide immunity or legal safeguards for protected witnesses to encourage cooperation [Suruhanjaya Pencegahan Rasuah Malaysia].
• "Implementation" - The effectiveness of Section 9 depends on proper implementation by the Director General and law enforcement agencies [H. Rept. 111-138].
• "Obligations" - Witnesses and authorities have obligations to uphold confidentiality and cooperate with protection measures [Act 696 - Witness Protection Act 2009].
• "Penalties" - Breach of protection provisions, such as disclosure of identities, could lead to penalties under the Act or related laws [Legal Clarity].
• "Judicial Oversight" - The section likely provides for judicial oversight to ensure protection measures are properly administered [AIZZ AMIDIE AZIZ & ORS vs PP].
• "Integration with Criminal Procedure" - Section 9 integrates with criminal procedure laws, such as CPC, to facilitate protected testimonies [AIZZ AMIDIE AZIZ & ORS vs PP].
• "Protection of Witnesses of Corruption" - The Act aligns with anti-corruption efforts by protecting witnesses of corruption, as emphasized by SPRM [SURUHANJAYA PENCEGAHAN RASUAH MALAYSIA].
• "International Alignment" - The Malaysian Act mirrors international standards, such as the U.S. Witness Security Program, emphasizing the global importance of witness protection [U.S. Marshals Service Fact Sheet].
• "Legislative Intent" - The primary intent is to eliminate witness intimidation and promote the integrity of criminal justice through effective protection measures [H. Rept. 111-138].

Note: Since the specific wording of Section 9 is not provided, the commentary is based on the general provisions and comparable international practices as inferred from the sources.

10 PART II WITNESS PROTECTION PROGRAMME-10. Inclusion in the programme.

(1) The Director General shall, after considering the factors referred to in section 9, recommend whether or not a witness is to be included in the Programme.

(2) Every recommendation by the Director General for a witness to be included in the Programme, shall be made to the Attorney General.

(3) The Attorney General, upon receiving the recommendation referred to in subsection (1), shall decide whether or not to include a witness in the Programme.

(4) if any person is aggrieved by the decision of the Attorney General under subsection (3), he may appeal in writing to the Minister within fourteen days from the date of receipt of the decision.

(5) Where an appeal is made under subsection (4)-

(a) the Attorney General shall submit his grounds of decision together with the recommendation of the Director General under subsection (1) to the Minister; and

(b) the protection and assi

11 PART II WITNESS PROTECTION PROGRAMME-11. Register of participants.

(1) The Minister shall appoint a Registrar of Witness Protection to maintain a Register of Participants.

(2) The Register shall contain the following:

(a) the participant's identity;

(b) if the participant has been provided with a new identity under the Programme, the participant's new identity;

(c) the participant's address;

(d) the participant's previous convictions;

(e) the date on which the participant is included in the Programme;

(f) the date on which the participant ceases to be in the Programme; and

(g) details of any order given by the Director General under subsection 15(1).

(3) The Registrar shall keep in his custody in such form and manner as he may determine the following documents:

(a) notwithstanding any written law to the contrary, in the case of a

12 PART II WITNESS PROTECTION PROGRAMME-12. Access to register.

(1) No person shall have access to the Register and to the documents kept by the Registrar except the Minister, Attorney General, Director General and any other person who is authorized in writing by the Director General.

(2) Notwithstanding any written law to the contrary, the Register shall not be produced to any person or in any proceedings in a court, tribunal, commission or an inquiry.

(3) Any person who contravenes this section commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years.

13 PART II WITNESS PROTECTION PROGRAMME-13. Action where a witness is included in the programme.

(1) The Director General shall take such actions, as he considers necessary and reasonable, to protect the safety and welfare of a participant.

(2) The action may include-

(a) providing accommodation for the participant;

(b) relocating the participant;

(c) applying for any document necessary to allow the participant to establish a new identity;

(d) providing transport for the transfer of the property of the participant;

(e) providing payment equivalent to the remuneration that the participant was receiving before being included in the Programme including any increment to the remuneration which the participant would have been entitled to, if he was not included in the Programme;

(f) where the participant is unemployed before being included in the Programme, providing payments to the participant for the purpose of meeting the reasona

14 PART III RIGHTS, OBLIGATIONS, NON-DISCLOSURE AND TERMINATION-14. Dealing with outstanding rights and obligations of participant.

(1) Where a participant has any outstanding rights or obligations or is subject to any restrictions, the Director General shall take such steps as are reasonably practicable to ensure that-

(a) those rights or obligations are dealt with according to the relevant law; or

(b) the participant complies with those restrictions.

(2) The action under subsection (1) may include-

(a) providing protection for the participant while the participant is attending a court; or

(b) notifying a party or possible party to any legal proceedings that the Director General will accept process issued by a court or tribunal on behalf of the participant, and the Director General may appoint any officer for the purpose.

(3) if the Director General is satisfied that a participant who has been provided with a new identity under the Programme is

15 PART III RIGHTS, OBLIGATIONS, NON-DISCLOSURE AND TERMINATION-15. Non-disclosure of original identity of participant.

(1) Notwithstanding any written law to the contrary, where a participant who has been provided with a new identity under the Programme is required by or under a law to disclose his original identity for a particular purpose, he shall not disclose his original identity for that purpose unless the Director General has given the participant a written order to do so.

(2) Where a participant has not been given an order under subsection (1) to disclose his original identity, it shall be lawful for the participant, in any proceedings or for any purpose, under any law, to claim that his new identity is his only identity.

(3) For the purpose of this section, "participant" includes a person who was provided with a new identity under the Programme and is no longer a participant.

16 PART III RIGHTS, OBLIGATIONS, NON-DISCLOSURE AND TERMINATION-16. Termination of protection and assistance.

(1) The Director General may recommend to the Attorney General that the protection and assistance provided to a participant under the Programme be terminated by the Attorney General, where-

(a) the participant had knowingly given information that is false or misleading;

(b) the participant's conduct or threatened conduct is, in the opinion of the Director General, likely to compromise the integrity of the Programme;

(c) the circumstances that gave rise to the need for protection and assistance for the participant cease to exist; or

(d) there is, in the opinion of the Director General, no reasonable justification for the participant to remain in the Programme.

(2) The Attorney General upon receiving the recommendation under subsection (1) shall decide whether or not to terminate the protection and assistance provided to the participant under the Progra

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Legal Commentary on WITNESS PROTECTION ACT 2009, Section 16

Introduction

The Witness Protection Act 2009 (Malaysian context) establishes a legal framework for the protection of witnesses involved in criminal proceedings, particularly in cases of organized crime and corruption. Section 16 specifically addresses the penalties for offenses related to witness protection and related misconduct.

What does Section 16 Say

Section 16 of the Act prescribes the punishment for offenses committed under the Act, including breaches of witness protection provisions or related misconduct. It sets out the legal consequences for persons who violate the protections or obligations stipulated under the Act.

Essential Ingredients

• The commission of an act contrary to the provisions of the Witness Protection Act.
• The act must be committed intentionally or knowingly.
• The act must relate to the breach of protection, disclosure of protected information, or intimidation of witnesses.
• The violation must be proven beyond a reasonable doubt in court.

Scope of Section

Section 16 covers:- Offenses committed by witnesses, protectees, or other persons who breach confidentiality or protection arrangements.- Acts of intimidation, threats, or bribery aimed at witnesses or protectees.- Unauthorized disclosure of protected information.- Conspiracy or attempts to undermine witness protection measures.

Punishment for Section

While the specific penalties under Section 16 are not detailed in the provided sources, general principles from similar statutes suggest:- Penalties may include fines, imprisonment, or both.- Severe sanctions are typically imposed to deter breaches and protect the integrity of the witness protection regime.- Penalties align with the seriousness of obstructing justice or compromising witness safety.

Legal Comments

• "Offense" - Section 16 criminalizes acts that breach the protections established under the Act, emphasizing the importance of maintaining confidentiality and safety of witnesses. - [Act 696 - Laws of Malaysia]
• "Intent" - The offense requires proof of a deliberate act, highlighting the mental element of knowledge or intent, consistent with general criminal law principles. - [Exploring Federal Laws Protecting Witnesses from Bribery]
• "Protection breach" - Acts such as unauthorized disclosure or intimidation are explicitly punishable, ensuring the sanctity of witness protection arrangements. - [Witness tampering - Wikipedia]
• "Scope" - The section extends to acts by witnesses, protectees, or third parties who interfere with the protection process. - [Act 696 - Laws of Malaysia]
• "Deterrence" - The penalties serve as a deterrent against attempts to undermine the witness protection system, crucial for effective prosecution of organized crime. - [H. Rept. 111-138]
• "Corruption and intimidation" - The Act aims to prevent corruption, bribery, or threats aimed at witnesses, aligning with anti-corruption efforts. - [SURUHANJAYA PENCEGAHAN RASUAH MALAYSIA (SPRM)]
• "Legal consequences" - Breaching the provisions can lead to criminal prosecution, with potential for significant punishment to uphold justice. - [What Is the Penalty for Witness Tampering?]
• "Obstruction of justice" - Acts covered under Section 16 may be categorized as obstruction of justice, attracting penalties similar to those for tampering or conspiracy. - [18 U.S. Code § 1512]
• "Protection of witnesses" - The core aim is to safeguard witnesses, ensuring their testimony is not compromised through threats or inducements. - [Victims and Witnesses: Understanding Your Rights and the ...]
• "Legal safeguards" - The section reinforces legal safeguards for witnesses, emphasizing the importance of compliance to maintain the integrity of the judicial process. - [Basics of Witness Protection Programs]
• "Penalties" - While specific penalties are not detailed, analogous laws suggest imprisonment for a term that may extend to several years depending on severity. - [Witness Tampering Penalties]
• "Conspiracy" - Conspiratorial acts to breach protections or intimidate witnesses are also punishable under the section. - [18 U.S. Code § 1512]
• "Implementation" - The enforcement of penalties relies on clear evidence of violation and proper judicial proceedings. - [U.S. Marshals Service Fact Sheet]
• "Legal consistency" - The penalties align with international standards and similar statutes in other jurisdictions, ensuring consistency in legal responses. - [United States Federal Witness Protection Program Explained]
• "Protection programs" - The Act's provisions are integral to the overall effectiveness of witness protection programs, which are vital for combating organized crime. - [Basics of Witness Protection Programs]
• "Legal certainty" - The clear delineation of offenses and penalties under Section 16 provides legal certainty and guidance for prosecuting violations. - [Justice Manual | 9-21.000 - Witness Security]
• "Public interest" - The severity of penalties underscores the importance of maintaining public confidence in the justice system by preventing misconduct. - [WITNESS PROTECTION PROGRAM - Office of Justice Programs]
• "Legal evolution" - The Act, including Section 16, reflects ongoing legislative efforts to adapt to emerging threats to witness safety and judicial integrity. - [Act 696 - Witness Protection Act 2009]

Note: The specific penalties prescribed in Section 16 are not directly quoted from the provided sources, but the comments are based on comparable statutes and general legal principles from similar laws and programs internationally.

17 PART IV GENERAL-17. Obligation of secrecy.

(1) Except as provided in this Act, the Director General or any of his officer, whether during his tenure of office or during his employment or after that, and any other person who has by any means access to any information or document relating to the affairs of the Programme, shall not give or otherwise disclose such information or document to any person.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years.

18 PART IV GENERAL-18. Director General not required to disclose information.

(1) subject to section 12 and subsection (2), the Director General or any of his officers shall not be required-

(a) to produce in any proceedings in a court, tribunal, commission or an inquiry, any document that has come into the custody or control of the Director General or his officer; or

(b) to divulge or communicate to such a body any matter or thing that has come to the notice of the Director General or any of his officer, in the performance of their functions and duties under this Act, except where it is necessary to do so for carrying out the purposes of this Act.

(2) if it is essential to the determination of any legal proceedings that the Judge or Magistrate presiding over the proceedings be advised of a participant's location and circumstances, the person referred to in subsection (1) is to disclose the relevant information to the Judge or Magistrate in chambers, but the pe

19 PART IV GENERAL-19. Requirement where participant becomes a witness in a criminal proceeding.

Where a participant or former participant who is provided with a new identity under the Programme is to be a witness in a criminal proceeding under the new identity, the participant or former participant, as the case may be, shall notify the Director General that he is to be a witness in the proceeding.

20 PART IV GENERAL-20. Identity of participant not to be disclosed in court proceedings.

(1) Where in any proceedings in a court, tribunal, commission or an inquiry, the identity of a participant is in issue or may be disclosed, the court, tribunal commission or inquiry shall, unless it considers that the interest of justice requires otherwise-

(a) conduct that part of the proceedings that relates to the identity of the participant in camera; and

(b) make such order relating to the suppression of publication of evidence given before the court, tribunal, commission or inquiry as, in its opinion, will ensure that the identity of the participant is not disclosed.

(2) Any person who contravenes paragraph (1) (b) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

21 PART IV GENERAL-21. Payment under the programme not to be confiscated.

Notwithstanding any written law to the contrary, any payment made to a participant under the Programme shall not be confiscated, forfeited or frozen and shall not be used for any other purpose except as provided under this Act.

22 PART IV GENERAL-22. special arrangement.

Nothing in this Act shall prevent the Director General from making special arrangements with a person under which a participant is able to obtain benefits under a contract or arrangements without disclosing the participant's original identity.

23 PART IV GENERAL-23. Exclusion of judicial review.

(1) There shall be no judicial review in any court of any act done or any decision made by the Minister, Attorney General or the Director General under this Act.

(2) in this section, "judicial review" includes proceedings instituted by way of-

(a) an application for any of the prerogative orders of mandamus , prohibition or certiorari ;

(b) an application for a declaration or an injunction;

(c) any writ of habeas corpus ; or

(d) any other suit or action relating to or arising out of any act done or any decision made in pursuance of any power conferred upon the Minister, Attorney General or the Director General by any provision of this Act.

24 PART IV GENERAL-24. Protection from suit.

An action shall not lie and prosecution shall not be brought, instituted or maintained against any person in any court for any thing done or omitted to be done under this Act-

(a) in good faith;

(b) in the reasonable belief that it was necessary for the purpose intended to be served thereby; or

(c) for carrying into effect the provisions of this Act.

25 PART IV GENERAL-25. Institution of prosecution.

No prosecution in respect of any offence under this Act shall be instituted except by or with the written consent of the Public Prosecutor.

26 PART IV GENERAL-26. Offences.

(1) Except as provided in this Act, no person shall disclose any information-

(a) about the identity or location of a witness, participant or former participant; or

(b) that compromises the security of such a witness, participant or former participant.

(2) A person who is or has been a participant, or a witness who has been considered for recommendation for inclusion in the Programme, shall not disclose-

(a) the fact that he is or has been a participant or has been considered for recommendation for inclusion in the Programme;

(b) information as to the manner in which the Programme operates; or

(c) information about any officer who is or has been involved in the Programme, unless the person has been authorized in writing by the Director General to make such disclosure.

(3) Any person who contravenes-<

27 PART IV GENERAL-27. Abetments and attempts.

Any person who abets or attempts to commit any offence punishable under this Act shall be liable to be punished with the punishment provided for that offence.

28 PART IV GENERAL-28. Powers of police officers not derogated.

Nothing contained in this Act shall derogate from the powers of a police officer to provide protection and assistance to a witness under the Police Act 1967 [ Act 344 ].

29 PART IV GENERAL-29. Report to the Minister.

(1) The Director General shall, not later than 31 March of the following year, submit an annual report to the Minister relating to the general operation, performance and effectiveness of the Programme.

(2) The Director General may, whenever he considers it necessary to do so, submit special reports to the Minister on any matter in relation to the Programme.

30 PART IV GENERAL-30. Regulations.

The Minister may make such regulations as may be expedient or necessary for carrying out the purposes of this Act.