and their invention. As we held in the first judgment [1], the right to remain silent does not apply to the very delivery of the documents, so that a suspect who has been ordered to hand over documents to the court is obligated to provide them, and he is not entitled to ignore the order on the grounds of the right to remain silent. This is what we said there:
"... Is a suspect indeed permitted, relying on the right of silence granted to him, to refrain from providing documents – including documents that do not incriminate him – who has been ordered to deliver by judicial order without explaining his refusal, without confirming or denying the existence of the documents or some of them in his possession, and without any judicial review of his refusal to deliver the documents? In my opinion, the answer to this is in the negative... " (at p. 759).
In our case, too, my approach is similar. My opinion is that insofar as it is necessary for the execution of the order, and only in this matter, the witness, even if he is a suspect in a case for which the documents are required, does not have the right to remain silent, and he must answer questions relating to the non-compliance of the order and the place of the documents, otherwise the purpose of the section will be thwarted, and a person who is ordered to produce documents to the court will be able to evade fulfilling the order and fill his mouth with water. To be precise, these are only questions that relate directly to the question of non-compliance with the order, and which are capable of promoting its lawful fulfillment.
- The appellant expressed before us a concern that if it is determined that the suspect does not have the right to remain silent in the proceeding taking place to clarify the existence of the order, the way will be opened for the prosecuting authorities to circumvent the silence of suspects in the course of their interrogation by way of a request for a super order-Phi Article 43.
As in the first judgment [1], in this judgment too we will not decide the dispute between the parties as to whether the suspect has, as a rule, a right to remain silent, or perhaps only the right to self-incrimination. Therefore, I will suffice to say that the concern raised by the appellant as aforesaid is not a real concern. First, the issuance of orders by virtue of section 43 is subject to the discretion of the court. As we noted above and in the first judgment [1], the issuance of orders by virtue of this section must be done in rare cases and not as a routine matter. Second, it should be remembered that the delivery of documents pursuant to an order by virtue of section 43 is subject to confidentiality from self-incrimination in the sense that a person – a suspect or a witness – may refuse to answer questions to which the answer is likely to incriminate him (subject to the possibility of use privilege, according to section 47 ofthe Evidence Ordinance, which is also expected only in rare cases). It appears that if the interrogation of the suspect is limited only to the content of the order and its fulfillment, i.e., to the delivery of the objects that are the subject of the order – as it should be – then it is subject, like the delivery of the documents themselves, to the merit of self-incrimination only. In light of the aforesaid, the concern that the prosecuting authorities will use the possibility of issuing warrants in order to force suspects to break their silence during the police interrogation –