Criminal 101 – The Right to Remain Silent
When you are arrested by a police officer, you are normally accorded a myriad of legal rights in this country. Amongst them is the right to remain silent. However, and as we will find out soon enough, this right can potentially be a double-edged sword.
What is it about?
The right to remain silent is a legal right that is afforded to a person if he is under arrest and is questioned by a police officer- you can choose to remain silent if you are questioned by a police officer. That said, you are still obliged to give your personal information to the police officer, such as your name, age, address and occupation. Anything beyond your personal information, you can opt to not answer until and unless you have the opportunity to consult a lawyer.
Why? This is simply to prevent you from accidentally “shooting yourself in the foot” i.e. admitting to a crime that you did not commit.
Is the right absolute?
The short answer will be a no. The long answer is this- there are laws that say otherwise i.e. you cannot mum your way through police questioning. For example:
- Under section 112(2) of the Criminal Procedure Code (for example), you must answer all questions relating to a case that it put to you by a police officer unless by answering those questions you might expose yourself to a crime.
- This is similarly found in legislation such as 75 (2) of the Internal Security Act (a law that provide for the internal security of Malaysia i.e. prevention of subversion or organized violence against any person and property in Malaysia) and section 37A (2) of the Dangerous Drumugs Act (a law that provides for the regulation and penalty of the importation, exportation, manufacture, sale, and use of dangerous drugs in Malaysia).
- Under section 30 (3)(b) of the Anti-Corruption Commission Act (a law creates provisions to prevent an act of corruption in Malaysia), the Act compels any person to answer any questions/ disclose all information imposed to him by the anti-corruption commission officer which is within his knowledge/ available to him truthfully/ to the best of his knowledge and belief (even if it incriminates him or his spouse).
What happens if you choose to remain silent?
Now here is where the ugly side of the right kicks in. While you can elect not to present any evidence to disprove the police officer’s allegation, accusation or claim against you and no adverse inference can be drawn against you for choosing to remain silent, the chances of you being convicted by the court (after the prosecution has proven its case against you) is definitely higher as compared to if you were to speak up and defend yourself from the allegation, accusation or claim.
Example of case law (when a person choose to remain silent)
In Public Prosecutor v Ahmad bin Ibrahim, Ahmad was charged with trafficking cannabis and was sentenced to death. He chooses to remain silent after being arrested (after failing to set himself free). The court held that while a person is entitled to remain silent when being questioned, the fact that his act of struggling vigorously to set himself free whilst being arrested and yet he refused to answer any questions suggests that he knew what he did was wrong. The court had no choice but to convict him of the offense.
In Mrs. Suporn Vachimapet v Pendakwa Raya, Mrs. Suporn was charged with trafficking methamphetamine in a bag and was sentenced to death. She chose to remain silent until she was questioned by the prosecution during the trial (in which she replied she did not know the contents of the bag). The court held that the fact that she chose to remain silent when she could have said she did not know what was in the content of the bag right when she was arrested goes to shows that she knew what was in the bag. Similarly, the court had no choice but to convict her of the offense.
Therefore, if you are ever arrested and questioned by a police officer, choose to exercise the right prudently. While it might save you from further trouble, it could also potentially cause you more trouble should you fail to defend yourself from an allegation, accusation or claim.
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