Southeast Asia Regional Elaboration of The Hague Memorandum Good Practices for the

Judiciary in Adjudicating Terrorism Offenses

26 April 2016

Introduction

On 3-5 November 2015, the Global Center on Cooperative Security (Global Center) held a second regional workshop for the judiciary to advance the implementation of the Global Counterterrorism Forum’s (GCTF) The Hague Memorandum on Good Practices for the Judiciary in Adjudicating Terrorism Offenses (hereinafter Hague Memorandum). The workshop, held in Manila, the Philippines, was conducted in partnership with the Philippine Judicial Academy (PHILJA) under auspices of the GCTF Criminal Justice Sector / Rule of Law Working Group. Participants included judges and representatives of training academies from Cambodia, Indonesia, Malaysia, the Philippines, and the United States of America (U.S.), as well as a senior rule of law adviser to the U.S. who facilitated the drafting of the Hague Memorandum.

The observations presented here elaborate upon the questions and issues that were raised during the workshop and aim to compare the experiences relating to the practical application of the good practices, assess the challenges associated with handling terrorism cases in Southeast Asia, and consider a broad range of strategies to achieve their implementation in the jurisdictions considered. In this respect, the regional elaborations build upon a core principle appearing in the preamble of the Hague Memorandum which recognizes that states can only implement “those aspects of any set of good practices that their legal systems allow for” and encourages states to implement the good practices that are “appropriate to their circumstances and consistent with their domestic law, regulations, and national policy, while respecting applicable international law.” A first regional workshop and related elaboration document were prepared at the conclusion of a first regional workshop held in East Africa in July 2015.1

The fractured landscape and the geopolitical climate on terrorism in Southeast Asia bring about a set of priorities and practices that vary greatly from country to country, though the countries’ proximity to one another highlights the importance of international cooperation for the investigation and prosecution of transnational crimes. Violent extremist groups have been known to operate and hide in isolated littoral areas of the Sulu-Sulawesi Sea between Malaysia, Indonesia, and the Philippines. The Philippines is among one of the countries most affected by terrorism in the region, surpassed only by Thailand, while

1 Global Center on Cooperative Security, “East Africa Regional Elaboration of the Hague Memorandum,” 22

September 2015, http://www.globalcenter.org/wp-content/uploads/2015/07/East-Africa-Elaboration-of-the-Hague-

Memo.pdf.

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Cambodia ranks in the bottom half on the 2015 Global Terrorism Index.2 Indonesia faces threats from various extremist groups and suffered the deadliest terrorist attacks in the region during the 2002 Bali bombings, whose mastermind reportedly found safe haven in Cambodia.3 While Cambodia is primarily preoccupied with the issue of money laundering and terrorism financing within its territory,4 its proximity to areas of terrorist operation networks and Thailand—which has experienced a surge of terrorism attacks over the past few years—is a source of growing concern.5 Foreign terrorist fighters are also an emerging issue in the region, with Malaysia and Indonesia ranking among the top 20 source countries in the Organisation of Islamic Cooperation for the export of Islamic State of Iraq and the Levant (ISIL) fighters.6

The following document summarizes the discussions held during the workshop with varying representation from the jurisdictions. As such, the observations are not equally weighted between the countries and do not purport to be equally representative.

Good Practice 1: Identify and Assign Specially Trained Judges

All jurisdictions welcomed the proposal to train more judges to handle the complex issues and challenges that arise in terrorism and related cases and recognized the need for more focused training on this topic. None of the jurisdictions provided special training to judges on the topic of terrorism cases specifically, though some judiciaries have sent judges to attend trainings or seminars on the subject held in Thailand and elsewhere. While they struggled to reconcile the public interest of having generalist judges within a system that mandates their relocation every few years, most felt that the training should nonetheless be focused to a cadre of experienced judges who handle complex criminal cases or volunteer to undertake such cases in support of their professional development.

In Indonesia, terrorism cases are brought to special courts in Jakarta for security reasons. This is also the practice in Cambodia, where the president of a regional court may submit a request to the Ministry of Justice to transfer the case to Phnom Penh, considered to be better equipped to handle the security implications. In Indonesia as in Cambodia, however, all judges must be relocated in new districts every two to three years. Even if some judges were to complete training, then, there is no specific regulation on who has the authority to try cases of terrorism. Any judge that handles criminal cases may hear cases of terrorism.

Since 2012, the Malaysian High Courts have jurisdiction, though not exclusive, over “security offenses” specified in the domestic penal code.7 Two experienced judges from each of the local jurisdictions are

2 Institute for Economics and Peace, “Global Terrorism Index 2015,” http://economicsandpeace.org/wp-content/uploads/2015/11/Global-Terrorism-Index-2015.pdf. 3 Kevin Doyle et. al, “Hambali left gentle impression in Phnom Penh,” Cambodia Daily, 22 Aug. 2003, https://www.cambodiadaily.com/archives/hambali-left-gentle-impression-in-phnom-penh-40151/. 4 In 2015, Cambodia was ranked the sixth country most vulnerable to money laundering worldwide under the Anti-Money Laundering Index published by the Swiss-based Basel Institute on Governance. See Basel Institute on Governance, “Basel AML Index 2015 Report,” 18 Aug. 2015, https://index.baselgovernance.org/sites/index/documents/Basel _AML_Index_Report_2015.pdf. 5 Supra n. 3. 6 Security Offences (Special Measures) Act of 2012 (SOSMA), Federal Government Gazette, 22 June 2012, http://www.federalgazette.agc.gov.my/outputaktap/20120622_747_BI_Act%20747%20BI.pdf, art. 12. The High Courts in Malaysia function both as courts of original jurisdiction and as appellate courts to the subordinate Magistrates’ and Sessions courts. 7 SOSMA, art. 12. The High Courts in Malaysia function both as courts of original jurisdiction and as appellate courts to the subordinate Magistrates’ and Sessions courts.

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nominated to hear terrorism and security offenses cases, and substantial experience is required to fill this post—one judge had over 30 years’ experience on criminal and terrorism affairs.8 The prime minister has recently called upon the judiciary to set up a special court to handle cases relating to violent extremism and ISIL. In December 2015, the Chief Justice of Malaysia appointed five High Court judges to specifically hear ISIL militants and security cases. For the year 2015 alone, there were 110 cases registered under SOSMA and out of these, 59 cases were brought to judgment. The hope is that setting up a specialized court will expedite the proceedings and help curb the spread of terrorism in Malaysia. While the Malaysian judiciary handles various terrorism cases, it does not currently provide special training to judges for handling terrorism and security related cases. On occasion, the Judicial Academy and the Judicial and Legal Services Training Institute organize courses, trainings, seminars, and workshops on the general topic of handling criminal cases.

The Philippines’ prior experience with special courts to handle terrorism and national security offenses is the reason they no longer have them and are hesitant to adopt the practice of having select judges who are specially trained to handle terrorism cases. The Supreme Court abolished the Heinous Crimes courts in 2004 in response to continued killings of members of the judiciary and the compromised security of judges. Terrorism cases are not assigned to specific judges; they get randomly assigned like all other cases, and a request to transfer cases requires Supreme Court approval.

A major concern identified by Filipino participants was the fact that family courts have jurisdiction over minors involved in terrorism cases if there is at least one minor involved in the case as a perpetrator or a victim, even if the rest of the defendants or victims may be adults.9 Many terrorism cases therefore get transferred to the family courts in the Philippines, inadvertently imposing an uneven burden on family court judges. This raises concerns of clogging up family courts with complex criminal cases which may not be best suited for the venue, as well as plausibly creating a skewed incentive of “forum-shopping” by defendants who may target or use minors in terrorist ploys. This development may therefore affect the allocation of training resources for the adjudication of terrorism cases.

The following regionally-specific recommendations were proposed:

1. Judicial training academies should provide training on the adjudication of terrorism and other national security-related cases, particularly on the issues of security, managing multiple defendants, handling evidence from intelligence sources, and adopting witness protection measures.

2. Judiciaries should direct and allocate training materials and resources to a pool of judges who handle terrorism cases or volunteer judges who may be called upon to handle terrorism and related cases. The cadre should be small enough to receive focused training while being a large enough pool to reduce susceptibility or risk of targeting by accused persons and their sympathizers.

8 Under the Practice Directions issued by the Chief Judges of Peninsular Malaysia, Sabah and Sarawak, all terrorism cases throughout Peninsular Malaysia have to be heard and disposed of in the designated High Court of Kuala Lumpur. In Sabah and Sarawak, such cases must be heard and disposed of in the designated High Court in Sabah and Sarawak. 9 Family courts are currently being implemented as special courts all over the country. In contrast to courts of general jurisdiction, judges must apply to sit in a family court. Republic Act No. 8369, Special Rules on Implementing the Family Court Act of 1997, Official Gazette of the Republic of the Philippines, 28 Oct. 1997, http://www.gov.ph/1997/10/28/republic-act-no-8369/, section 5.

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Good Practice 2: Support the Use of Continuous Trials in Terrorism and other National Security Cases

The right to a speedy trial forms an integral component of the right to a fair trial. In jurisdictions where the provision is made explicit, if a case has not been moving in accordance with the statutorily-imposed time period or is unduly delayed, the right to a speedy trial may be invoked as a ground for dismissal. Participants noted that the issue of accused persons languishing in jail beyond the time permitted for awaiting their trial is a basic human rights issue that undermines the rule of law in their countries. Time limitations safeguard the due process rights of the accused, prevent unreasonable delays in bringing cases against the accused, and enhance the efficiency of the judiciary.

The major contributors to delays in terrorism cases included:

The large caseloads of the courts;

Shortage of competent court personnel, particularly interpreters and stenographers;

Unavailability of prosecutors and lawyers for the accused due to their high workload or due to a shortage of attorneys;

Unfilled judicial positions in the courts;

Power outages.

The Philippines practice went well beyond the recommendations delineated in the Hague Memorandum. The right to a speedy trial is enshrined in the 1987 Constitution of the Philippines which sets out explicit time limits for the resolution of cases.10 The Philippines has enacted a series of laws, administrative circulars, and rules encouraging the judiciary to ensure the speedy disposition of cases, providing for continuous periods or timetables within which a court must hear and decide cases, criminal or otherwise, with sanctions and disciplinary actions imposed for noncompliance.11 The Republic Act No. 8493 (The Speedy Trial Act) of 12 February 1998 is the main statute that applies in all criminal cases.12 If an accused is not brought to trial within the time limits specified under the act, the case may be dismissed against the accused upon motion on the ground of denial of the right to a speedy

10 Section 15, art. 8(1) states that “all cases … must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all the lower courts.” 11 The Laws and Circulars on Speedy Trial include Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of

2002) (establishing a Special Drugs Court and setting a time limit for the trial period and rendering of the decision);

Circular No. 38-98, Implementing Circular on R. A. No. 8493 (The Speedy Trial Act), 15 Aug. 1998; Administrative

Circular No. 3-99 (Strict Observance of Session Hours of Trial Courts and Effective Management of Cases to Ensure

their Speedy Disposition of January 15, 1999) (providing for a 90-day trial period and another 90 days to

promulgate judgment after case is submitted for resolution); Administrative Circular No. 58-2002, 14 Nov. 2002

(requiring the speedy disposition of cases and priority to cases involving tourists whose stay in the Philippines is

temporary or for a short time only); OCA Circular No. 151-2010 on Speedy Disposition of Cases for Violations of

Republic Act No. 9208, as amended (Anti-Trafficking of Persons Act of 2003) (providing that cases shall be heard

and decided within 180 days from the arraignment of the accused); Administrative Matter No. 12-11-2-SC on the

Guidelines for Decongesting Holding Jails by Enforcing the Rights of the Accused Persons to Bail and Speedy Trial,

18 March 2014; and other measures in the Financial Rehabilitation and Insolvency Act of 2010, Intra-Corporate

Disputes, and intellectual property rights violations. 12 The act mandates that the arraignment of an accused must be held within 30 days from the filing date (section 1) and trial must commence within 30 days of the arraignment (section 2). The trial period shall not exceed a period of 180 days except as otherwise authorized by the Chief Justice of the Supreme Court (section 3), pursuant to section 3, rule 22 of the Rules of the Court (section 6).

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trial.13 Despite the proliferation of rules and regulations, a vast majority of the terrorism cases being filed since January 2011 in the Philippines were still pending trial in April 2016.14 Many judges face obstacles contributing to delays that may be outside of their power to control. Participants noted the need for constant and consistent monitoring by the courts and the implementation of disciplinary measures and sanctions as provided for under the laws for noncomplying persons, “without fear or favor.”

Plea agreements were also raised as a means of leading to prompt and final dispositions of criminal cases. They refer to various mechanisms of disposing criminal charges by agreement between the prosecution and the accused. Good Practice 5 of the GCTF’s Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice Sector (hereinafter Rabat Memorandum) refers to this practice as one way to incentivize terrorist suspects and others to cooperate in counterterrorism investigations and prosecutions. The practice has not gained wide acceptance in all jurisdictions where the practice is legal, however, and many actors will not consent to the procedure, citing concerns about possible human rights violations, the principle of legality, and general unfamiliarity with the procedure. With the exception of Malaysia, none of the jurisdictions in Southeast Asia are a common law jurisdiction where the practice of plea bargaining is more commonly practiced and accepted.

In the hybrid legal system of the Philippines, plea bargaining is generally allowed in criminal cases, except for crimes falling under the Dangerous Drugs Act. Judges in the Philippines are active participants in the bargaining process at the pretrial phase which occurs in open court, and all parties, including the accused, must consent to the procedure. In practice, however, there is a reluctance to bargain because of the severity of the crime of terrorism, and judges wishing to implement this process have difficulty obtaining the approval necessary from all involved parties. In one account, the judge had to engage in extensive consultations with the attorneys to convince them of the legality and desirability of the process, but the city, as the private complainant, would not consent to the procedure. It was proposed that judges enter into informal mediation with the city. This kind of liaison, while not prohibited, was frowned upon as being uncustomary and possibly unethical.

The importance of safeguarding victims’ rights in the bargaining process was also discussed. In Malaysia, the victim may issue a victim impact statement which is considered during sentencing and does not prevent the prosecution or the defense from entering into a plea agreement. If the accused pleads guilty to one of the most serious charges, then only the lesser charges will be considered for sentencing purposes. The prosecution presents a statement of facts, and prior to the conviction, the accused persons must be asked whether they admit to the facts detailing all the elements of the crime. If no agreement is reached, the case is assigned to a different judge.

In Indonesia, judges are directed to finish general criminal cases within a certain period of time not exceeding five months.15 In terrorism and related cases, however, the accused typically remains in

13 Republic Act No. 8493 (The Speedy Trial Act), Official Gazette of the Republic of the Philippines, 12 Feb. 1998, http://www.gov.ph/1998/02/12/republic-act-no-8493/, section 14. 14 From January 2011 to September 2015, there were 7,025 cases involving terrorism in the Philippines, of which 113 or only 1.61 percent are newly filed. A majority of these cases or 3,817 were still pending trial in April 2016; and of this number, only 26 cases, or less than 1 percent, have been decided. 15 Stipulated in the Supreme Court Circular Letter No. 2 of 2014, 13 March 2014.

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detention until the investigation is completed up through the delivery of the verdict.16 Judges therefore seek to complete the case before the period of detention ends and the accused must be released.17 The judicial practice in Indonesia has been to hear and decide terrorism cases within a period of approximately three to four months. In preparation, the judge usually sets the court calendar to schedule lengthy proceedings such as the examination of witnesses in the trial stage. On average, an Indonesian judge holds trial once or twice a week. Multiple defendant cases are broken up into several smaller cases and assigned to separate panels of three judges with one presiding judge.18 Indonesian lawmakers have also recently introduced a criminal procedure bill to include a special procedure (jalur khusus) to allow defendants to plead guilty in order to increase efficiency in Indonesian courts overrun with criminal cases concerning juveniles. The procedure is solely conducted by a judge and not negotiated independently by prosecutors and defendants. As such, some commentators have described it as a form of summary procedure and noted that it may increase the risk of false confessions.19

The following recommendations were proposed:

1. Formulate strategies and implement strict time limits for the adjudication of terrorism cases prior to the trial proceedings. These may include:

Separating civil cases from criminal cases;

Hearing different types of cases on different days of the week;

Limiting the time period where revisions and amendments may be made from the receipt of the pretrial order.

Discouraging attorneys from introducing new or additional evidence or witnesses that do not have probative value and may unduly delay the trial that were not previously marked or named in the pretrial order.

2. Foster an environment of judicial cooperation and maintain good relationships with colleagues who may assist one another in sharing the caseload and who can assist in order to schedule a continuous trial in the case of terrorism. Where feasible, judges handling a large caseload may submit a request to the Supreme Court or appropriate ministry to be relieved of some cases.

Good Practice 3: Develop Effective Trial Management Standards

Judges from the participating jurisdictions discussed the importance of early planning to contain the dynamics of trial. Delays affect the legitimacy of the courts as the general public is not aware of why delays occur but that they can be extremely lengthy. A common obstacle cited in the jurisdictions is the large caseloads of judges. It was emphasized that management standards begin the day the judge is assigned the case in the pretrial or investigatory stage. Among the issues that should be covered during these early phases, participants listed:

Marking and deciding on which exhibits will be introduced during trial;

16 Detention is limited to offenses liable to imprisonment of five years or more, and crimes under article 21(4)(b) of the Criminal Procedure Code. The Law of Criminal Procedure (KUHAP), State Gazette of the Republic of Indonesia no. 8, 31 Dec. 1981, art. 56. A district court judge has the authority to issue a warrant of detention for thirty days, which may be extended to sixty days where the case being examined is liable to imprisonment of nine years or more. KUHAP, arts. 26, 29. 17 Id. at art. 29. 18 Id. at art. 142. 19 See, e.g., Choky Risda Ramadhan, “Plead Guilty, Without Bargaining: Learning from China’s ‘Summary Procedure’ before Enacting Indonesia’s ‘Special Procedure’ in Criminal Procedure,” 18 July 2014, http://works.bepress.com/choky_ramadhan/1.

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Setting time limits for opening and closing remarks, examination and cross-examination of the witnesses;

Specifying what technology is permissible in the courtroom (ex. television screens, cell phones, video cameras, real time recordings);

Listing the number of witnesses and the reasons for their testimony and not allowing new evidence or witnesses to be introduced during trial that were not already pre-marked or named in the pretrial order without a showing of good cause;

Detailing guidelines for the media (Good Practice 8);

Making a list of motions intended to be filed;

The following recommendations were proposed:

1. Focusing resources of the judiciary on courts that are unevenly burdened with terrorism cases. Trying complex cases such as terrorism cases requires a synergy of resources and efforts.20

2. Developing a bench book or manual to guide judges in the management of cases.21 This helps capture the guidelines on what judges are allowed to do, including exceptions to time limitations that should be recognized under statutes of limitations.

Good Practice 4: Support Special Measures to Protect Victims and Witnesses in the Trial Process

Participants recognized the important role of the court in protecting the rights of witnesses and victims in the trial process and encouraging their vital participation. Most of the participating jurisdictions with the exception of Cambodia had institutions and special laws to protect witnesses and victims of terrorism and other crimes. The following protections were commonly extended: the use of pseudonyms for witnesses, assurances of anonymity during testimony and in court reports or other records, and limiting disclosure materials to the defense to not reveal potentially identifying information. In all jurisdictions but especially in those that did not have comprehensive victim and witness protection acts, nongovernmental organizations (NGOs) played a central role in providing protection to victims. Judges in those jurisdictions recognized the need for special rules for the protection of witnesses and victims in the investigative phase.

The use of bail was also discussed for its potential to negatively affect the safety of witnesses and victims. Bail applications are available but frequently denied in terrorism cases in Cambodia, and its applicability is limited in the Philippines.22 Under SOSMA in Malaysia, bail is not granted to persons who have been charged with a security offense but exception is made where the accused is a minor below

20 In the Philippines, for example, three regions handle the bulk of the terrorism cases. Statistics from the Court Management Office of the Office of the Court Administrator show that the distribution of cases involving terrorism is uneven. Out of 7,025 cases involving terrorism from January 2011, the National Capital Judicial Region handles 1,087 (15.47 percent of the cases), Region 4-A handles 741 (10.55 percent), and Region 10 handles 1,271 cases (18.09 percent), while the each of the remaining regions have less than 10 percent of the total cases involving terrorism as of September 2015. 21 Some jurisdictions, such as the Philippines, already have manuals for trial management available to judges. 22 Bail applications are not generally permitted where the imposable penalty is life imprisonment (reclusio perpetua) in the Philippines. Under the Human Security Act, moreover, bail is denied where there is a strong evidence of guilt and flight risk, wherein the accused’s right to travel may also be limited. Republic Act No. 9372 (Human Security Act), Official Gazette of the Republic of the Philippines, 6 March 2007, http://www.gov.ph/2007/03/06/republic-act-no-9372/, section 26.

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the age of eighteen years, a woman, or a sick or infirm person.23 As a measure of precaution, however, a person released on bail under those circumstances must wear a monitoring device.

The Malaysian Parliament has passed two major laws for the protection of witnesses applicable in terrorism cases: SOSMA of 2012 and the Witness Protection Act of 2009.24 Part VI of SOSMA contains provisions that provide special procedures relating to protected witnesses. At any time during the trial, a witness for the prosecution may request that her or his identity not be disclosed and receive assurances that he or she will not be seen or heard by the accused and the accused’s counsel when giving testimony in court.25 In such instances the judge will hold a session in camera to determine whether the witness needs special protection, and upon a positive finding, may bar questions that could lead to the identification of witnesses such as those concerning their name, address, occupation, or other particulars.26 Any information containing a protected witness’s name, address, identifying picture, or other evidence likely to lead to her or his identification is strictly prohibited, subject to penalty.27

Following the 2002 Bali bombings, the president of Indonesia issued Government Regulation in Lieu of Law No. 1/2002 on the Eradication of Criminal Acts of Terrorism (Perpu), later adopted as Law No. 15/203. Perpu defines who qualifies as a witness, victim, and/or informant. Under article 33, witnesses and their families are provided protection by the state from possible threats to their lives or property before, during, or after the proceedings. Witnesses may receive assurances of anonymity and may testify before the court without having to face or interact directly with the suspect. Indonesia’s Witness and Victim Protection Agency (LPSK)28 is in charge of providing protection and securing the rights of witnesses and victims.29 LPSK has the authority to provide protection and other rights of witness and/or victim from the investigative stage onwards.

In the Philippines, the Witness Protection, Security and Benefit Act (1991) is administered by the National Prosecution Service within the Department of Justice. It features regular interaction with the armed forces and the Philippine National Police. Judges have the discretion to use protective measures during the pretrial phase, especially where the witness is a juvenile.

The conditional examination of a witness before the trial judge was discussed as a means to preserve the testimony of traumatized witnesses ahead of trial. It was suggested that deposition be taken down remotely either by written interrogatory or oral examination, with a deposing judge present at the scene. Then, the entire deposition would be brought to court and before the accused. In the Philippines, witnesses may give testimony outside of the courtroom in two scenarios: (1) where the witness is sick or infirm; or (2) the witness is leaving the country with no definite period of return. Under the rules, the witnesses will be examined by a judge before the trial court where the case is pending, in a trial examination where the prosecution and defense can conduct examinations. The issue is whether witness intimidation should be an extraordinary circumstance that warrants the use of conditional

23 SOSMA, section 13. 24 Witness protection measures are also provided for under the Criminal Procedure Code, Evidence Act of 1950 and the Evidence of Child Witness Act of 2007, which provides protection to a witness who is a child below the age of sixteen. 25 SOSMA, section 14. 26 Id. 27 Id. at section 16. Any person who prepares such a report is liable to imprisonment for a term not exceeding five years and a fine not exceeding 10,000 RM (approximately 2,386 USD). 28 See Lembaga Perlindungan Saksi dan Korban, http://www.lpsk.go.id/home. 29 Law No. 13/2006 (Law on Witness and Victim Protection), Sekretariat Negara Republik Indonesia, 11 Aug. 2006.

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examination of a witness. There were some concerns that this practice could be unduly prejudicial to the rights of the accused.

The use of live link testimony was discussed as another option to not force witnesses to come to trial. Participants agreed that the use of this technology was a good mechanism for taking the testimony of witnesses who had been traumatized. It was noted that all of the international criminal tribunals, including the Extraordinary Chambers in the Courts of Cambodia (ECCC), made extensive use of live link testimony for witnesses due to practical considerations of travel. Cambodia does not make use of live link testimony in its national courts, however.

Other cost-effective measures were proposed such as having witnesses speak from behind a screen, where only their voices may be heard to cover their identity. In regional courts in Indonesia, the accused may be placed in a separate room while the witness answers questions in the courtroom. The judge takes on the role of the defense counsel and considers objections in lieu of the accused. Cambodia similarly uses an investigative judge accompanied by a clerk to ask questions to a witness away from the accused. At trial, the judge can use the deposition as part of the evidence to be reviewed and parties have an opportunity to cross-examine or revise the material.

Judges were generally of the opinion that the protective measures employed above did not infringe upon the rights of the accused, and more should be done to protect witnesses. In cases with multiple defendants, typically where criminal organizations are involved, witnesses must often testify on numerous occasions as more defendants are arrested and brought before the court over the course of an ongoing trial. Witnesses often travel from afar, such as from a different island in the Malay archipelago or from an isolated location under the witness protection program, causing hardship on themselves and their families and compromising their safety. A judge described an instance of flying a witness from the United States on a chartered plane on two separate occasions during a lengthy trial. The challenges of prolonged, noncontinuous trials (Good Practice 2) therefore compound victims’ hardship and their availability or willingness to testify in trial.

Participants agreed with the recommendations outlined in this good practice and added the following regionally-specific recommendations:

1. Discuss the possibility of creating clear exceptions in the legislation or rules of the court concerning the accused’s right to confront witnesses in cases where the testifying witness may be a victim of trauma. Focus on creating evidentiary rules and implementing protective measures that would permit victims to give testimony while being protected from possible retaliation or intimidation. For instance, judiciaries should make use of live link testimony for taking the testimony of witnesses where necessary, so as to not expose the victim to retraumatization or long travel and separation from their families. Have a neutral party validate the authenticity of the proceedings and identity of the witness and representations from both the defense and the prosecution, and meet at a remote location where the victim gives his or her testimony.

2. Judges in the region reflected on the need for a comprehensive strategy to address the needs of victims and integrate their voices in counterterrorism efforts.30

30 In this regard, Cambodia, Indonesia, Malaysia, and the Philippines, along with Papua New Guinea and Thailand, have agreed to establish a technical agency charged with improving cooperation among their national agencies in protecting witnesses and victims of transnational crime in 2013. Desy Nurhayati, “Agency to be established to protect crime witnesses, victims,” The Jakarta Post, 14 Nov. 2013, http://www.thejakartapost.com/news/2013/11/14/agency-be-established-protect-crime-witnesses-victims.html. However, none of the judges in the room were aware of the existence of this agency.

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Good Practice 5: Supporting the Right of the Accused to a Fair Trial with Adequate Legal Representation

Good Practice 5 references three international legal instruments as the primary sources for the rights of the accused related to criminal prosecution: the Universal Declaration of Human Rights, International Covenant for Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT). The ICCPR was ratified by Cambodia (1992 by accession), Indonesia (2006 by accession), and the Philippines (1986). The CAT was ratified by Cambodia (1992 by accession), Indonesia (1998), and the Philippines (1986 by accession). Malaysia has yet to ratify the ICCPR or the CAT.31 Due process rights of the accused are guaranteed in the constitutions of all four countries and some antiterrorism provisions also include these protections.32

In all four countries, there is a right to counsel for criminal offenses under the law.33 In the Philippines, legal aid is delivered through the public attorney’s office, the Philippines Legal Aid Committee of the Integrated Bar of the Philippines, and the Commission on Human Rights, an independent constitutional body. NGOs such as the Free Legal Assistance Group also provide free legal assistance. Cambodia provides legal aid as a matter of right. In practice however, permanent, state-funded legal aid services are available in only 14 of its 25 provinces.34 NGOs such as the Legal Aid of Cambodia and the Cambodian Defenders’ Project provide legal counsel for indigent persons. To facilitate the provision of pro bono legal assistance more effectively and efficiently, the Indonesian Advocate Association formed a Legal Aid Centre. The Centre appoints an attorney to provide pro bono legal assistance to indigent parties. Rule No. 1/2010 directs and encourages attorneys to provide pro bono legal assistance amounting to a minimum of 50 hours every year.35 This provision is used as a requirement to obtain or renew Attorney Identity Cards, whose issuance or renewal is deferred until the attorney’s requirements have been fulfilled. In Malaysia, the National Legal Aid Foundation (YBGK)36 was established in 2011. It is governed by a board of directors chaired by the attorney general and is overseen by various agencies,

31 This fact has been criticized during the country’s Universal Periodic Review in 2013. The Human Rights Commission of Malaysia, a governmental body, has made the ratification of the core international human rights treaties one of its priority areas of focus. See “Has the State of Human Rights Improved in Malaysia?” Aliran for Unity, http://aliran.com/archives/monthly/2001/4j.html. 32 See Constitution of the Kingdom of Cambodia, art. 31; Constitution of Malaysia, arts. 5, 8; Constitution of the Republic of the Philippines, art. 3. The Constitution of Indonesia implicitly refers to the right of due process under article 1. While the 2007 Human Security Act of the Philippines iterates that “the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the constitution” and the exercise of its powers “shall not prejudice respect for human rights which shall be absolute and protected at all times” (section 2), Malaysia’s Prevention of Terrorism Act of 2015 has been criticized for serious violations of individuals’ due process rights and fair trial, especially in its detention provisions. See, e.g., Human Rights Watch, “HRW slams Malaysia’s new ‘repressive’ anti-terrorism law,” 7 April 2015, https://www.hrw.org/news/2015/04/07/hrw-slams-malaysias-new-repressive-anti-terrorism-law. 33 The right to counsel is enshrined in the constitutions of Cambodia (art. 38), Malaysia (art. 5), and the Philippines (art. 3), among other sources. In Indonesia, the right is protected under Law No. 14 of 1970 on Judicial Power and in the Criminal Procedural Law (art. 54). 34 International bridges to Justice, “Cambodia,” http://www.ibj.org/where-we-work/cambodia/. 35 Rule No. 1/2010 ( Guidelines to Provide Free Legal Aid), 8 July 2010 (under mandate of Law No. 18/2003 on Advocates of 5 April 2003 and Government Regulation No. 83/2008 (Requirements and Procedures for Provision of Free Legal Aid of 31 Dec. 2008). 36 Yayasan Bantuan Guaman Kebangsaan.

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notably the Malaysian Bar Council. YBGK funds legal aid and assistance in connection with criminal proceedings and provides services for lawyers in the private sector to represent those who require legal representation in all types of criminal proceedings, with the exception of crimes that carry the death penalty.37 In capital offenses, the Malaysian courts provide assigned counsel to persons charged.

Against these efforts however, violations of the rights of the accused are rampant across the region, especially on the issue of arbitrary detention.38 In Indonesia, expansive powers bestowed on the enforcement officials under the Criminal Procedure Code (specifically to the Crime Investigation Agency, or Bareskrim) have resulted in some 51,000 individuals in detention, mostly without legal assistance, amounting to systematic violations due to the absence of the habeas corpus and adequate pretrial examination procedures, according to a human rights attorney.39 To counteract the possible mistreatment of detainees and detention conditions, executive judges in the Philippines are directed to make periodic visitations.40 The visits also seek to ensure that detainees remain informed on their case and to remind them that they may bring issues to the court’s attention, such as those involving their health. Trials in absentia were permitted in all jurisdictions under certain circumstances. The Cambodian Criminal Procedure Code provides for trials in absentia.41 Proceedings may also be conducted in the absence of the accused in Indonesia under limited circumstances. For terrorism offenses, however, the accused must be present at all times with some exceptions made for cases involving multiple defendants. In the Philippines, when the accused fails to appear after bail is granted, the trial may be continued in his or her absence as long as she or he has been personally arraigned.42 In Malaysia, the personal attendance of the accused may be dispensed with at the discretion of the judge issuing a summons and continue in the presence of his advocate.43 The accused’s presence is required during the pronouncement of the judgment, unless his or her personal attendance had been previously dispensed with and the sentence is one of fine only.44

Given the vast number of languages and dialects spoken in each country, the use of interpreters during trials is commonplace and the right to an interpreter is upheld throughout court proceedings in all jurisdictions. Interpreters must take an oath to interpret truthfully. In Indonesia, it is the prosecutor’s responsibility to secure an interpreter for the accused. Local persons are usually called upon to translate or serve as interpreters, since there are so many regional dialects and languages. The lack of qualified state-appointed interpreters was an issue in many of these jurisdictions, especially for languages not spoken within the country, such as Arabic and Chinese, and where interpreters cannot be secured through the appropriate embassies. As such, the Philippines Supreme Court passed a new circular stating that the court may engage the services of a private interpreter.45

37 See Yayasan Bantuan Guaman Kebangsaan, http://www.ybgk.org.my/index.php?option=com_content&view=fro ntpage&Itemid=1&lang=en. 38 See, e.g., Human Rights Watch, “HRW slams Malaysia’s new repressive anti-terrorism law,” 7 April 2015, https://www.hrw.org/news/2015/04/07/hrw-slams-malaysias-new-repressive-anti-terrorism-law; International Federation for Human Rights, “Terrorism and Human Rights in the Philippines: Fighting terror or terrorizing?,” April 2008, https://www.fidh.org/IMG/pdf/ph493a.pdf. 39 Nurkholis Hidayat, “Revamp checks and balances on National Police,” Jakarta Post, 27 April 2015, http://www.thejakartapost.com/news/2015/04/27/revamp-checks-and-balances-national-police.html. 40 By Administrative Circular from the Supreme Court. 41 Criminal Procedure Code, Official Gazette of the Kingdom of Cambodia, 7 June 2007, art. 33. 42 Rule 114, section 2(c) of the Rules of Court on trials in absentia. 43 Criminal Procedure Code (Amendment) Act 2010 (hereinafter Malaysia CPC), Government Gazette, 1 Nov. 2012, section 137(1). 44 Malaysia CPC, section 273. 45 Office of the Court Administrator Circular 102-2011.

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The following recommendations were proposed:

1. To ensure the utility of this good practice, participants suggested aiming for a one-to-one ratio of legal representation to an accused person. In the Philippines, Indonesia, and Cambodia, one lawyer can represent various defendants. This raises an issue on potential conflicts of interest. Participants generally cited the lack of additional judges, public attorneys, and bar members to handle terrorism cases from start to finish as an obstacle to implementing this ideal.

2. Judges should conduct regular visits to detention sites and keep detainees informed of the court proceedings where possible, especially in multiple defendant cases where one attorney may represent hundreds of individuals and cannot be expected to meet with each of them with regularity. Such visits help keep the accused informed of the court proceedings and bring to the court’s attention the detention conditions to ensure that other rights are not violated.

3. Courts could partner with universities to set up a roster of people who are eligible to provide interpretation services. Universities may have an interest in it as a training opportunity for the students.

Good Practice 6: Support the Development of a Legal Framework or Guidelines for the Use and Protection of Evidence from Intelligence Sources/Methods

Participants emphasized the importance of prevention embodied in this good practice and agreed that as a major issue it raises concerns about the rights of the accused to a fair trial. The jurisdictions represented did not have an established relationship or practice of cooperation between their national intelligence agencies and law enforcement or prosecution services.46 Neither had any of the judges ever dealt with issues related to the admissibility of information derived from national intelligence agencies.

The experience of the judges was that they have dealt with the use of sensitive evidence from law enforcement agencies, but none have had experience or were aware of information from intelligence agencies being used in court proceedings. Where laws addressing sensitive evidence were in existence, they were seen as providing insufficient guidance on the use and protection of evidence from intelligence agencies. Judges suggested promulgating regulations to expeditiously fill in gaps in the laws and to provide a basis for their decisions. Currently, the absence in the law has the potential of deterring judges from acting quickly and confidently in handling classified information.

In the Philippines, the Human Security Act of 2007 requires judicial authorization from the Court of Appeals for law enforcement agencies to listen to, intercept, and record communications of persons charged with or suspected of terrorism as an exception to the provisions of Republic Act No. 4200 (Anti Wiretapping law).47 While the legal basis exists, law enforcement officials seldom make use of these techniques in practice due to the prevailing belief that evidence obtained through such means would be rejected in court. As such, the introduction of the evidence rarely comes up in the Philippine courts. Judges also noted that the Human Security Act failed to provide clear guidance to judges on the handling

46 In Cambodia, a National Counterterrorism Committee coordinates the country’s security elements and intelligence apparatus to counter any direct threat posed by violent extremist organizations and their supporting elements. Indonesia also has a national counterterrorism unit organized into various divisions, including one that focuses specifically on intelligence. To date, it doesn’t appear that the information from the agencies has been used as evidence in proceedings. 47 Human Security Act, section 7. Judicial authorization is also required for examining terrorist suspects’ bank deposits, accounts, or records, in line with constitutional requirements providing that searches and seizures may proceed only upon the issuance of a court warrant and not on executive determination. See The Constitution of the Republic of the Philippines (1987), art. 3, section 2.

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of evidence collected through those means, including its classification and protection. This may suggest that judges prefer to reject the evidence rather than risk its unlawful inclusion.

Indonesia’s antiterrorism law (the Perpu), contains a provision broadly allowing investigators to use “any intelligence report” to obtain sufficient preliminary intelligence; some commentators have noted with concern that uncorroborated intelligence reports produced by state-run agencies may thus be used to initiate investigations, apprehend suspects, and order detentions.48 Following the attacks in Jakarta by armed men in January 2016, moreover, recent proposals to bolster the Perpu include calls to give intelligence officers authority to make arrests.49 None of the participating judges had thus far experienced handling intelligence evidence in the Indonesian courts. Malaysia has legislation that deals with the use and disclosure of sensitive evidence under SOSMA. Terrorism and national security-related offenses are an exception to the general rule in the criminal code that the accused is entitled to a full pretrial disclosure of all documents and information in the case against him or her. SOSMA envisions three scenarios where such evidence may arise in court: upon the public prosecutor’s motion (section 8),50 by the accused (sections 9 and 10),51 and during trial (section 11).52

Judges explored disclosure mechanisms and related challenges that may arise in the submission of ex parte applications dealing with sensitive information. After assessing the evidence, a judge in Malaysia may decide that the evidence produced in a summary form by the prosecution or a law enforcement official is substantially adequate and may take the additional step of only allowing the defense attorney—and not the defendant—to access it, posing a potential conflict of interest between attorneys and their clients. While the ECCC applies certain international standards and provides for the defense’s involvement in the disclosure hearing, current Cambodian domestic law does not. The notion of defense

48 See Government Regulation in Lieu of Legislation of the Republic of Indonesia No. 1/2002 on Combating Criminal Acts of Terrorism (Perpu) (later adopted as Law No. 15/203), State Gazette of the Republic of Indonesia, 18 Oct. 2002, art. 26(1). See also Topo Santoso, “Anti-Terrorism Legal Framework in Indonesia: Its Development and Challenges,” in Mimbar Hukum, vol. 5, no. 1, Feb. 2013, pp. 88-101, 99; Human Rights First, “Reformasi & Resistance: Human Rights Defenders and Counterterrorism in Indonesia,” Human Rights Defenders and Counterterrorism Series No. 2, 2005, pp. 9-10, https://www.humanrightsfirst.org/wp-content/uploads/pdf/reformasi-resist-052505.pdf. 49 See International Commission of Jurists, “Indonesia: Terrorism cannot be countered without protecting human rights,” 20 Jan. 2016, http://www.icj.org/indonesia-terrorism-cannot-be-countered-without-protecting-human-rights/. 50 In such cases, all evidence from intelligence sources or methods is classified as “sensitive information.” After reviewing the evidence, the court orders the prosecutor to produce either a statement setting out the relevant facts that the sensitive information would seek to prove or a summary of the sensitive information to be admitted as evidence in the trial. The defense counsel may follow one of three courses of action: (i) view the sensitive information; (ii) object to the admission of the statement or the summary; or (iii) make an application to disclose the sensitive information to the accused. The prosecution then submits a response and the court makes a determination as to whether the statement or summary is admissible or may be disclosed to the accused. This decision is final and may not be appealed. SOSMA, section 8. 51 An accused who chooses to disclose sensitive information during her or his defense must first give notice containing a brief description of the sensitive information in writing to the public prosecutor and to the court. Failure to provide this notice will result in the preclusion of the disclosure. Upon a finding of relevance, the court conducts the trial in camera. SOSMA, sections 9, 10. 52 If relevant, sensitive information otherwise arises during the trial, the court directs the public prosecutor to produce a statement or summary of the evidence. The evidence is inadmissible if the minister certifies that the production of statement or sensitive information is prejudicial to national security or the national interest. SOSMA, section 11.

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attorneys undergoing security clearances was also controversial among participants. They agreed that the practice of limiting the disclosure of the summary or parts of the evidence to just the defense counsels is a poor one; judges in that scenario should demand that a better summary be produced to be presented to the accused in order to protect their right to challenge the case against them.

Good Practice 7: Contribute to the Development of Enhanced Courthouse and Judicial Security Protocols and Effective Courtroom Security

Participants felt that the safety of judges was one of the most pressing issues in the region and in their respective jurisdictions. As a grim reminder, a judge mentioned that a person may be hired to kill for an equivalent sum of $2,000 to $6,000 in his jurisdiction. None of the jurisdictions had an emergency management plan or security protocols in the courthouse outside of basic earthquake or fire drills. Most jurisdictions did not have meaningful security checkpoints besides guards posted by the courthouse or courtroom, and metal detectors or screening devices at the entrances to the courthouse and courtrooms are rare. While police officers are regularly posted at courthouse entrances in Cambodia, they only check the identification of people entering the building and do not search the person for weapons or other prohibited items.

One of the more robust provisions for the security of judges handling terrorism cases was in Indonesia. Under the Perpu, judges and their families, along with witnesses, investigators, and prosecutors in the case, are provided protection by the state from possible threats to their lives or property.53 The Indonesian National Counterterrorism Agency provides assistance when judges need security before, during, or after the proceedings. Protection is to be provided by law enforcement officials and security forces in the form of personal security, assurances of witness anonymity, and the ability to testify before the court without dealing directly with the suspect.

Judges mentioned their mistrust in the local police as an unlikely source for services or personnel and as an obstacle to their own security. Reference was made to private security or the family unit as providing safety and retributive justice to create a deterrent effect in the communities where judges and defendants’ supporters reside. In this regard, it was stressed that the greatest security risk to judges occurred outside of the courthouse. Simple security measures such as standing behind the controls when the elevator doors open were discussed. Other suggestions included expunging judges’ social media presence, banning cell phones and other electronic devices in the courtrooms, and placing the judge’s desk away from the window. In the absence of resources, courtroom or janitorial staff often serve as enforcers of courtroom rules.

The presence of security officials was generally increased in high profile cases and cases involving national security. In Cambodia for instance, judges can avail themselves of the services of specially-trained armed forces in high-profile cases. Police officials or jailers are also present in escorting detainees into and out of the courtrooms and stand by them in court. In the event that a defendant becomes disruptive, judges can use their inherent power to transport the accused back to jail and the trial is typically adjourned or may proceed in absentia upon repeated misconduct.

The following recommendations were discussed:

1. Request funds or allocate resources for the security of judges and their families by posting security staff at the courthouses and courtrooms to provide a deterrent effect and search

53 Perpu, art. 33: “witnesses, investigators, prosecutors, judges who examine the criminal acts of terrorism and their families must be given protection by the state from possible threats that endanger them self, their life, and/or their properties, either before, during or after the proceedings.”

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persons, and provide personal security for judges and their families. In the Philippines for instance, one judge had a personal officer assigned to protect his children in school.

2. Create an emergency fallback plan in the courtroom conceived together with security staff and relevant courtroom staff personnel. Judges should be aware of security procedures and take personal safety measures to minimize potential risks.

3. Provide monetary incentives for judges handling controversial cases as well as compensation or social benefits to judges in the event of tragedy.

Good Practice 8: Develop and Articulate Media Guidelines for the Court and Parties

Security concerns also come into play in the sometimes tense relationship between the court and the media. In national security cases, the press and the public may be excluded from all or parts of the trial to the extent necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.54 Judges discussed the considerations of the accused and the public’s right to an open and public hearing in terrorism trials against security concerns.

None of the judiciaries represented have formal media rules with corresponding sanctions. Media practice guidelines were well developed in the Philippines, however, where judges are regularly provided training on this issue and a draft judiciary-media relations manual is currently being reviewed.55 In the absence of formal rules, then, it was agreed that judges should be encouraged to exercise their inherent judicial powers to limit the media presence inside the courtroom where it would not prejudice the interests of justice.

In Cambodia, prosecutors act as spokespersons of the court as judges are not allowed to make public speeches on the case. In Malaysia, reporters are allowed to attend the trial but no camera recording is allowed. In both jurisdictions, reporters are informed of the proceedings either at the trial or from information received by the public prosecutor and attorneys of the case. Indonesia does not have special rules for handling media in the courtrooms. Hearings are generally open to the public and the media, including terrorism trials. In practice, the presiding judge grants the media a license to record the sessions for television or streaming. Judges usually allow the media into their courtrooms as long as they feel that it is safe to do so, though photography is generally prohibited.

Judicial clerks serve as spokespersons for the courts in the Philippines and receive training in their course modules on how to deal with the media. Prior to facing the press, the clerks discuss what will be communicated with the presiding judge in a case. The subject matter is usually confined to distributing or communicating the contents of the decision, order, or ruling, and at most discussing the process of how the decision was issued or promulgated. They are not authorized to defend or speak about the merits of the decision, since the written decision is “the best evidence of itself.” This practice serves to shield judges from the media exposure and from potentially engaging in a back and forth exchange with the media where their words may be taken out of context.

The Supreme Court of the Philippines avails itself to the services of a public information office to handle media requests or questions. The Supreme Court recently introduced the live audio streaming of hearings inside the court, but video streaming is constrained to the court. On television, the names of judges are briefly flashed on the screen to identify the speakers in the audio track. The court has in the past granted a petition to film the promulgation of a decision in a high-profile case involving the former president. In that case, the cameras had to be strictly controlled by court officials and focused only on the person reading the decision and none of the defendants or witnesses.

54 ICCPR, art. 14(1). 55 The manual was produced by a subcommittee on judiciary-media relations formed earlier in the year by PHILJA.

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Though rarely done, judges may put in a request with the Chief Justice to have all media queries concerning their case be directed to the public information office. This was successfully done by one judge handling a multiple-defendants terrorism case. In a private session, the attorneys of that case had been counseled to not give interviews and agreed on the value of limiting media exposure on themselves and their clients. A flowchart depicting the progress of the proceedings was made readily available to the media. However, with more than 200 courts in the country—many of which are located on different islands or are far removed from the Supreme Court—it is difficult in practice to receive assistance from the public information office of the Supreme Court seated in Manila. Other judges prefer to bar all media presence in the courtroom and have taken other safety precautions, such as not disclosing their name in the search warrant and requesting law enforcement to not mention the name to the media and simply name the regional branch instead. While going through the Chief Justice is one possibility, then, it is not a procedure that is available to all judges, who may also feel that the limited media exposure is not worth the risk.

Participants generally agreed with the recommendations contained in this good practice and many had examples of implementation in their jurisdictions. The Philippines, for instance, has made use of the media pooling arrangement discussed in this good practice. The arrangement had to be made where a courtroom in a multiple-defendants case could not contain all media personnel, as it had been constructed just below the detention facility.

Good Practice 9: Ensuring Victims of Terrorism Access to Justice

Terrorism crimes usually involve a large number of victims. Participants emphasized the emotional turmoil confronted by victims and witnesses and the special need to prepare them emotionally, physically, and psychologically for the tribulations of trial. In many terrorism cases, the witnesses are also trauma victims and the act of confronting the accused in court leads to their retraumatization, diminishing valuable witnesses’ ability to complete their testimony. One participant detailed an incident where a kidnapping victim about to testify caught sight of the accused, fainted, and never returned to court. This led to the dismissal of the case against a commander associated with the Abu-Sayyaf group as there was no more material evidence to prove the offense. Judges emphasized the need for a flexible approach to successfully prosecute terrorists while making sure the rights of the accused to a fair and impartial tribunal will not be prejudiced.

Victims of terrorism, both primary and secondary, have legal interests in the proceedings. All of the jurisdictions generally provide victims with basic rights to restitution, the right to proceedings free from unreasonable delays (Good Practice 2) and the right to public hearings. Victims are allowed to attend court proceedings and may speak in them in the Philippines and Cambodia. In Malaysia, victims or their family members may, on request, make a victim impact statement prior to sentencing.56 In addition to the establishment of victims and witness protection agencies in many of the countries (Good Practice 4), NGOs also provide alternative assistance to victims and witnesses. In the Philippines, NGOs provide assistance to victims of extrajudicial killings and enforced disappearances, as well as counseling on international humanitarian law issues.

Although the Philippines has a witness protection program, some witnesses will refuse to join because of the great disruption it creates in their lives. In the past four years, out of about ten kidnappings perpetrated by known terrorist groups in a judge’s area of jurisdiction, there were five charges that were filed in court, and three of those have been dismissed due to lack of victim cooperation. The existence of witness protection programs by themselves are therefore insufficient guarantees of their protection, and judges focused their attention to other strategies listed in this good practice. The

56 Malaysia CPC, sections 173(m)(ii), 183A.

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conditional examination of a witness before the trial judge and the use of live link testimony were discussed as means to preserve the testimony of traumatized witnesses ahead of trial (see Good Practice 4).