Written by Ashley Yip, Richard Wee & Indthu Selvamuthu

This article is related to a previous article related to the Constitutional Right to legal representation if detained by authorities. 

Introduction 

It is often said that a citizen has a right to remain silent when detained by the authorities. What exactly does that mean and to what extent can a person remain silent? Does this right really exist in Malaysia?

The right to be silent can be misleading if not truly understood. The history behind this right corresponds with another important civil right and that a person is deemed innocent until proven guilty in Court. Flowing from that assumption of innocence, any detained person may choose to ‘keep quiet’ as any response to any question may incriminate him or her.  

Right to remain silent in Malaysia

There are general statutory provisions such as Section 112(2) of the Criminal Procedure Code and Section 37A of the Dangerous Drugs Act 1952 which codify this civil right. This short article will focus on these statutory provisions. 

Examination of witnesses by police

  1. (2) Such person shall be bound to answer all questions relating to the case put to him by that officer: Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

Admission of statements in evidence

37A. (1) Where any person is charged with any offence against this Act any statement, whether such statement amounts to a confession or not or is oral or in writing, made at any time, whether before or after such person is charged and whether in the course of a police investigation or not and whether or not wholly or partly in answer to questions, by such person to or in the hearing of any police officer of or above the rank of Inspector or any senior officer of customs and whether or not interpreted to him by any other police officer or senior officer of customs or any other person concerned or not in the arrest, shall notwithstanding anything to the contrary contained in any written law, be admissible at his 42 Laws of Malaysia ACT 234 trial in evidence and, if such person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit: 

Provided that no such statement shall be admissible or used as aforesaid— 

(a) if the making of the statement appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against such person, proceeding from a person in authority and sufficient in the opinion of the Court to give such person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him; or 

(b) in the case of a statement made by such person after his arrest, unless the court is satisfied that a caution was administered to him in the following words or words to the like effect—

  “It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence”:

Provided that a statement made by any person before there is time to caution him shall not be rendered inadmissible in evidence merely by reason of no such caution having been given if it has been given as soon as possible. 

(2) Notwithstanding anything to the contrary contained in any written law a person accused of an offence to which subsection (1) applies shall not be bound to answer any questions relating to such case after any such caution as aforesaid has been administered to him. 

(3) Where a statement is purported to be made by a person charged with an offence against this Act under and in accordance with section 113 of the Criminal Procedure Code, the statement so made shall be deemed to have been made under and in accordance with this section.

What does these provisions mean to the person on the street? 

So in layman terms, these statutory provisions are basically stating – a detained person may answer the arresting authority when asked questions, but that detained person may choose to remain silent if the answer might make you look guilty . For example – If a direct question such as “Did you murder Mr XYZ?” is being questioned, you have no obligation to answer it. 

In the said Section 112 of the CPC and in Section 37A of the DDA, the provisions clearly mentioned that a person “may refuse” or are under “no obligation” to answer any type of questioning from the authorities when detained with or without a legal practitioner around. In some situations, you probably are still obligated to give your personal information such as your full name, address and or identity card when asked for. Beyond these, you can opt not to answer anything else asked by the police as it might consider you confessing to a crime you did not commit.

Interestingly, in some instances, keeping quiet may actually be more detrimental. In the cases of Public Prosecutor v Ahmad bin Ibrahim [2012] 6 MLJ 426 and Suporn Vachimapet v Pendakwa Rakyat [2017] 10 MLJ 359, the accused persons chose to remain silent after being detained for possession of drugs. The Judges in both instances decided to impose an adverse inference against both accused persons and that led to their respective convictions.  

Conclusion

And so, do you as a person have a right to remain silent? The answer is a yes and a no. A person may choose to be quiet but may need to say something to defend themselves.

Published on 21 September 2020

Photo by Kristina Flour on Unsplash

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