Kota Kinabalu: Malaysia’s child protection laws are among the strongest in the world but often fail victims because of poor enforcement, advocate Datin Mary Gomez (pic) said, citing a Sandakan case in which a school bus driver escaped conviction because of a flawed investigation.
“Our laws are actually one of the best in the world, I have to say that, but it fails in practice. The gap is actually enforcement and not in drafting,” said Gomez, an advocate and solicitor of the High Court of Sabah and Sarawak with 36 years at the Bar.
She was among the panellists at the inaugural Child Safeguarding Conference held recently at the Sabah International Convention Centre, jointly organised by the Child Safeguarding Initiative, the Human Rights Commission of Malaysia and the Sabah Council of Social Services.
Gomez cited the 2022 case of Roslan Baki v Public Prosecutor, in which a school bus driver was charged with raping a 16-year-old deaf and mute girl, as an example of how the system can fail victims even when the law itself is sound.
“The school bus driver was acquitted not because the court did not believe her or did not believe that she was harmed, but because of the failure in investigations,” she said.
She said the police interview with the child lasted only 10 minutes and was conducted without a sign language interpreter, despite the availability of a special needs teacher. Investigators, she added, failed to seek the teacher’s assistance.
According to Gomez, the defence argued that the investigating officer’s questions were suggestive, and the judge ultimately found that the interview was “not fact finding but a fact confirming exercise”.
She said the court also acknowledged Parliament’s own recognition that interviewers at Child Interview Centres are often not adequately trained, that such centres are limited in number and that recorded interviews are frequently too brief.
“This case shows the whole problem in one judgment. The child, due to the shortfalls in the investigation, did not get justice because the persons carrying out the investigation did not carry it out properly. The deficiency is in delivery,” she said.
“Our laws are actually sufficient, but the frontliners have to make sure that the accused receives the conviction by proving the case beyond reasonable doubt,” she added.
On the legal framework, Gomez said the Child Act 2001 protects all children below the age of 18, including victims, witnesses and offenders, while the Sexual Offences Against Children Act 2017 established a special court for child victims of sexual crimes.
She said the 2017 Act was amended in 2023 and again on June 30 this year to allow persons accused of offences committed overseas against Malaysian children to be prosecuted under Malaysian law.
She added that the Evidence of Child Witness Act 2007 allows video-recorded interviews to be admitted in court so child victims do not have to face their alleged perpetrators during testimony.
Turning to reform, Gomez called for an end to child marriage under Syariah and Native laws, as well as the repeal of Section 97(2) of the Child Act, which she said permits undocumented children to be detained indefinitely in immigration cases.
“This has to be repealed and make sure that the child is detained in some shelter and not with adults in the detention centre,” she said.
She also called for the establishment of a monitoring agency to ensure frontliners adhere to child-friendly procedures, for victim support services to be provided at Child Interview Centres, and for police officers and deputy public prosecutors to receive adequate specialised training.
“Frontliners, such as the police and the deputy public prosecutors, must get adequate training to deal with child victims and witnesses so offenders receive the punishment they deserve instead of walking free and doing it again and again to other victims,” she said.
