By Dr Yong Kai Jie & Dr Chithra Latha Ramalingam
The recent passage of the Witness Protection (Amendment) Bill 2026 is an important step towards giving witnesses greater certainty and support when they agree to assist the justice system.
Although several changes may appear administrative, they address a central weakness in witness protection: People do not withdraw only because physical safeguards fail. Fear, uncertainty, isolation and the strain of testifying can gradually undermine their willingness to remain in the programme.
One of the Bill’s most significant reforms is the introduction of a mandatory witness protection agreement.
Under the new Section 10A, every witness admitted into the programme by the Attorney General must sign an agreement. The use of the word “shall” means participation must now be formally documented rather than left to administrative discretion.
This is a positive development. A written agreement gives witnesses and their lawyers something concrete to rely on when assessing the protection and assistance available.
That assurance is particularly important for witnesses preparing to testify against people who may pose a threat to them. Giving evidence in an adversarial court system can be highly stressful, especially when witnesses face intense cross-examination and challenges to their credibility.
Having the arrangements set out in “black and white” could reduce uncertainty and reassure participants that they will not be left in limbo.
However, the drafting could be strengthened.
The present wording places the obligation to sign on the participant, rather than expressly requiring the state to enter into an agreement with every protected witness. A clearer mutual obligation would better reflect the responsibilities of both parties.
There is also uncertainty over what the agreement must contain.
While Section 10A allows it to specify the protection and assistance offered, the use of the word “may” leaves those details largely to the Director General’s discretion. The agreement could therefore be mandatory while its most important protections remain insufficiently defined.
The law should require each agreement to state clearly what assistance will be provided, what is expected of the witness and how disputes or changes to the arrangement will be handled.
The amendment also leaves an unresolved issue involving minors and others who lack legal capacity.
It allows a parent or guardian to sign on their behalf. This is intended to overcome restrictions under the Contracts Act 1950, which generally prevent minors and persons lacking capacity from entering binding contracts.
Yet the provision addresses only who may sign. It does not expressly confirm that the resulting agreement is legally valid and enforceable.
This ambiguity could create competing interpretations, particularly if the agreement is assessed strictly under existing contract law.
There may also be cases in which a minor wishes to testify but a parent or guardian refuses to sign. Under the present structure, the witness could potentially be denied access to protection despite being willing to assist the authorities.
A clearer statutory mechanism is needed to validate agreements made on behalf of protected persons and to deal with situations in which parental consent is unavailable, withheld or contrary to the witness’s interests.
The reform also matters because it recognises the psychological and emotional pressures faced by witnesses.
Measures such as counselling and a supported exit from the programme could help witnesses remain committed throughout lengthy investigations and trials.
This is especially important in corruption cases, where an insider witness may be central to the prosecution. Stronger protection and aftercare could reduce the risk of witnesses withdrawing before a case reaches its conclusion.
The reform also creates a stronger bridge with Malaysia’s whistleblower framework. A person who first discloses wrongdoing and later needs to testify can now move more clearly into the witness protection system.
Disclosure and testimony should not be treated as separate processes when both may expose the same individual to retaliation.
The principal caution concerns oversight.
The Bill gives the Director General substantial discretion over the form and contents of witness protection agreements. Such powers may be necessary to respond to individual security risks, but they should be matched by transparent governance, review mechanisms and clear accountability.
The amendment is therefore a meaningful improvement, but it should not be seen as the final word.
Mandatory agreements, counselling and better aftercare can strengthen confidence in the programme. Their effectiveness, however, will depend on whether protections are clearly stated, capacity issues are legally resolved and administrative discretion is subject to proper oversight.
Witnesses take considerable personal risks to help the justice system. The law must give them not only protection, but certainty that the state’s commitments are clear, enforceable and accountable.
Dr Yong is Monash University Malaysia School of Business lecturer while Dr Chithra is the Senior Lecturer in Business Law and Taxation at Monash University Malaysia
