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4 situations where a witness can remain silent in a Malaysian courtoom

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Your husband goes out one night, and does not come back. You get a call from him late at night informing you he has been an arrested and will be charged in court. During the trial, you get asked to testify against your husband in court. Must you answer all questions put to you, even though you are scared it may put your husband in trouble?

To answer the question above, we have to look at the Evidence Act 1950 to determine which instances you have the right to remain silent in court.

Generally, anyone who qualifies as a witness must answer all questions presented to them.

Who qualifies as a witness? Almost everyone as provided for in Section 118 of the Evidence Act 1950:

“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind”

Simply put, if you understand the questions the lawyers or judges are going to ask you, and you are able to answer them properly, you qualify as a witness. However, you would not qualify if let’s say you cannot give a rational answer to the questions presented to you. This would apply to someone with some form of mental illness which would prevent him from communicating with the court rationally. 

The general rule in law is, if you are competent to be a witness, then you may be forced to testify in court. If you refuse to go or answer questions, you could be found in contempt of court. This is basically when the court finds that your refusal is actually interfering with the administration of justice. There are however, a bunch of instances where a witness can choose to remain silent.

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1. An accused cannot be forced to testify

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Section 120(3) of the Evidence Act 1950:

“In criminal proceedings the accused shall be a competent witness in his own behalf, and may give evidence in the same manner and with the like effect and consequences as any other witness:”

Simply put, the prosecution or the defence lawyers cannot call the accused to testify in the witness stand. They may only do so if the accused himself agrees to become a witness. The prosecution may want the accused to testify as a witness with the hopes that his answers may result in the prosecution winning. 

It should be emphasized that if the accused chooses to testify in the witness stand for the defence lawyers, he will not only be questioned by his own defence lawyers, but by the prosecution as well. This is known as examination and cross-examination. If the defence examines(aka question) the accused, the prosecution will get a shot at cross-examining the witness.This would be the only way the prosecution will have a shot at questioning the witness in court.

If let’s say the accused has something to say in court, but he does not want to be questioned. Alternatively, he can give a dock statement. Because this dock statement is not given under oath and it is not subject to questioning, it is not considered evidence.If it isn’t considered evidence, it would carry little to no weight in the accused’s case. 

2. Spouses cannot be forced to testify on their marital communications

Section 122 of the Evidence Act 1950 provides that:

“No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.”

To illustrate. Let’s say there is a murder trial. The prosecution would like to call the wife of the accused, because on the night of the murder the accused stormed out of the house with a knife and told the wife “I am going to settle this once and for all”. That would obviously be some very beneficial evidence for the prosecution. Unfortunately, the wife would not be allowed to tell the court what her husband said. According to Section 122, the spouse cannot reveal in a court of law communications she had with her spouse during their marriage, unless her spouse gives consent.

The exceptions to this rule would be when the case is between two spouses(ie the husband is suing the wife), or when one spouse is accused of an offence against the other spouse(ie the husband was charged with assaulting his wife). 

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3. You cannot be forced to testify if your answer would reveal state affairs


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Section 123 of the Evidence Act 1950 provides :

“No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Government of Malaysia, and of the Chief Minister in the case of a department of a State Government”

This provision would apply when the court asks a witness to produce unpublished records concerning state affairs. If such evidence were to be presented in court, approval would be needed by the relevant minister. So let’s say you are asked to produce a document in court, and that document is a PDRM document concerning a state matter. For that document to be produced in court, you would need the approval of Minister of Home Affairs.

The issue which would arise with Section 123, is what would amount to state affairs? The method of determination is laid out in the case of BA Rao v Sapuran Kaur. This case concerned the negligence of medical officers in a state health facility, and there was a request to produce a document concerning the findings of a Committee of Enquiry. There was an objection stating that the documents concern state affairs. The court decided, that it is for the court to decide whether the document concerned state affairs by examining all available evidence

4. Lawyers cannot be forced to testify about what their clients told them

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Section 126 provides that lawyers cannot :

“disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment” 

You probably know this provision as lawyer-client privilege or attorney-client confidentiality. For this privilege to apply, there actually has to be a lawyer-client relationship. This provision exists, so that clients can inform their lawyers all details to enable their lawyer to work properly. The client need not worry about his secrets being exposed in public. But, for this provision to apply there must a lawyer-client relationship. So, if you have a friend who is a lawyer, and you casually tell him something, section 126 would not apply and the lawyer can actually reveal what was said in court. 

One exception to this rule would be when you inform your lawyer that you are going to commit a crime. He can reveal what you have said to the court, and he can also inform what was said by you to the PDRM to prevent a crime.Thus, if you already robbed a bank and you told your lawyer, he must keep that secret. If you told your lawyer you are going to rob a bank, you would be in trouble. The other exception would be when you give express consent to your lawyer that he may reveal what you told him.

Although you can’t always remain silent, your rights as a witness are actually protected

In the United States, you can be forced to attend as a witness court. However, if a witness refuses to answer questions he or she can plead the 5th. This basically protects the right of a witness against self-incrimination. As we can see, the United States legal system prioritizes individual rights first. Malaysia actually follows the British system, which prioritizes the end goal of justice first but that does not mean your rights are totally unavailable. It is a more balanced approach.




This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.
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