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With the profound sophistication of technologies throughout the globe, the nature of crimes has also been changed tremendously which redound to shifting from physical to virtual paradigm. Furthermore, this high-tech has also surplus the sphere of crimes to economic, social, political, even cultural arenas, mostly through the internet. In consequence, to cope up with such cyber threats, the efficacy of electronic surveillance has been intensifying ostentatiously over the last two decades, predominantly in the west. Malaysia too has introduced such modern technology of e-surveillance owing to ensure security in both national and transnational levels by the adoptions of Security Offences (Special Measures) Act (SOSMA) 2012 and the Prevention of Crime Act (PCA) 2014. However, such enactments have raised a new controversy by allowing police to impose electronic monitoring devices as well as other types of technologically-aided surveillance over the arrested or suspected crime offender’s body. All these maneuvers undoubtedly intersect the very basic notion of individuals’ data privacy and freedom of liberty which are shielded by the Federal Constitution of Malaysia to some extent. With latest legislative and judicial supports on the right to data privacy of the citizens of Malaysia, the question now emerge on whether this trend will be short-lived by the newly passed security laws such as the SOSMA 2012 and PCA 2014 which empower electronic surveillance to the law enforcements? The purpose of the author is to delineate the application of e-surveillance in Malaysia under these security related enactments and find the loopholes in implementing such legislations. Data from journals and books have taken into consideration to dissect these conceptions. It also have cogitated some prominent decisions of the judges throughout the world to enlighten this literature.
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There is no god but Allah, and
Muhammad is the messenger of
Allah.
MOVING TOWARDS AN “EAGLE-EYED”
SOCIETY:
MALAYSIAN PERSPECTIVE.
Md. Zubair Kasem Khan
Department of Civil Law
Ahmad Ibrahim Kulliyyah of Laws
(AIKOL)
International Islamic University Malaysia
Outlines of the Presentation
Notion of E-Surveillance & Privacy.
Existence and Position of Privacy Rights in Malaysian
Legislations.
Connotations of Security.
Concern for Security in Malaysia.
Inauguration of Electronic Surveillance in Malaysian
Legislation.
Conflict that spring up between Privacy Rights &
Security.
Conclusion and Policy Recommendations.
E- Surveillance, Right to Privacy,
Security
With the proliferation of digital technologies at the hands of individuals and the state, the tension
between security and privacy today has further escalated. The immense development of the
information and communications technologies is seen as important tool to help ensure national
security by way of electronic surveillance.
Electronic
Surveillance
Right to Privacy National
Security
What is Electronic
Surveillance
Electronic Tracking Devices to
monitor his specific physical
locations and whereabouts.
By way of tracing his Cellular
Phone-calls.
Installation of Video Cameras
by way of photographs,
detectives, robots
‘X-radiation’ that can be used to
peep inside containers or human
bodies without having direct
physical intervention.
Notion of Privacy
The abstraction on “Privacy” decidedly becomes tricky for anyone simply
to understand what it is meant by and how far it covers.
According to Bloustein (1964 A.D.) & Khan
(2003 A.D.) - “Privacy is linked with human
personality in a way that, ‘autonomy, dignity and
integrity’ of an individual are depended,
influenced and protected by privacy”.
Westin (1967 A.D.) highlighted privacy as - human desire to expose
themselves, their attitudes and believes to others freely.
‘Privacy’ According to Scholars’
Perception
Privacy as the Form of Right to be Alone : by Warren
and Brandeis.
Privacy as the Form of Secrecy : by Richard Posner.
Privacy as a Form of Control over PersonalInformation : by Charles Fried and Jerry Kang.
Privacy as an Aspect of Human Dignity : by L. Prosser
and E.J. Bloustein.
Privacy as the Form of Limited Access : by Gavison.
Existence and Position of Privacy
Rights in Malaysian Legislations.
Under the Federal Constitution of Malaysia (FCM), the provision
of ‘right to privacy’ has not been inserted directly; neither any
legislation that has been adopted particularly in the establishment
of the privacy rights of every individual within near or far legal
history of Malaysia. However, it does not mean that the
constitution of Malaysia is reluctant to accept the importance of
privacy rights over its citizens. Furthermore, it can instead be
interpreted as a subset to a stupendous fundamental right.
There are some provisions, popularly known as the
“Fundamental Liberties” as stated under part II of the Federal
Constitution (FCM). The ‘Right To Life And Liberty’,
‘Freedom Of Movement’ and ‘Right To Property’, which
have been inserted under Articles 5, 9 and 13 of the Malaysian
Constitution respectively, have also got similar value of right
to privacy in many other countries.
Continuing…
To illustrate, in India, this notion of right to privacy has got Constitutional
recognition guaranteed for the inhabitants of India in the form of right to life and
liberty under Article 21, and this has been proven in the case of Kharak Singh vs.
State of Uttar Pradesh [1963] AIR SC 1295 and R. Rajagopal vs. State of Tamil
Nadu [1995] AIR SC 264, where the learned Supreme Court Judge, B.P. Jeevan
Reddy opined that:
“…certain privacy rights such as: ‘Individual Privacy
Rights’, ‘Privacy Of His Family’, ‘Child Bearing’,
‘Marriage’, ‘Procreation’, ‘Motherhood And Education’
should be ensured and the violation of these privacy
rights could be claimed under Art. 21 of the Constitution
Of India 1949…”
Interestingly, this idea has been reflected impliedly in the recent case of
Sivarasa Rasiah vs. Badan Peguam Malaysia & Anor [2010] 2 MLJ
115, whereby the learned judge refused to explain the notion of “right to
personal liberty” as mentioned in Art. 5 of the FCM in a narrow and
restricted point of view and therefore, other rights such as privacy rights
could be encompassed under this Art. 5.
Continuing…
A similar judgment also held in a number of contemporary different
cases such as: Chew Peng Cheng vs. Anthony TeoTiao Gin [2008]
5 MLJ 577 and Tan Seng Hin vs. Editor of “See Hua Daily News”
& Anor [2008] 8 MLJ 73 whereby it has been manifested that the
issue of ‘Right To Privacy’ shall cover under the spectrum of
“personal liberty” stated under Art. 5(1) of the FCM.
Before 2006:
Ignorance Of Privacy Rights In Malaysia.
After 2006 and onwards:
Recognition 0f Privacy Rights In Malaysia.
Connotation of National
Security
“… one purpose, and one purpose only, the Defence of the Realm.…”
[Lord Denning, 1963]
“…the words 'in the interests of national security' are not capable of
legal or precise definition. The circumstances are infinite in which
the national security may be imperiled, not only by spies in
espionage but in all sorts of indefinite ways….”[Hanks, Peter, 1988]
“…Security is a slippery concept. Its meanings are multiple and without
clarity about which meaning is intended (or understood); exactly what is being provided and consumed, sold
and bought, promised or sought remains. obscure….” [Lucia Zedner,
2003]
security as a form of assurance tallies strongly with the proliferation of
community safety policies and private security firms. What they sell is … a form of assurance… ‘We are not a security guard company: We sell a
concept of security”
Concern for Security in Malaysia.
In Malaysia, since the adoption of Internal Security Act (ISA) 1960, the Courts in
Malaysia had unceasingly shown a very much supportive attitude, to some extent
by way of compromising populace constitutional rights (by way of curtailing civil
liberties) against measures (such as- arrests or detentions) taken by executive
bodies, when it came to the issue of ‘National Security’.
Nik Adli bin Nik Abdul Aziz vs. Ketua PolisNegara [2001] 4 MLJ 598 Where Nik Adliclaimed a ‘habeas corpus’ and challengingsuch detention order (under Sec. 73 of the
ISA) and the court rejected such application.
This detention order furthermore extended fortwo years more by the Minister which also beenchallenged in the High Court and the FederalCourt respectively. However, in both the cases,the Courts upheld the decision of the minister bydismissing the application.
A similar picture of upholding an executivedecision by the judiciary was also evident in thecase of Nasharuddin bin Nasir vs. KerajaanMalaysia & Ors [2002] 6 MLJ 65, where Nasirwas suspected to have connections with KMM andarrested thereafter on April 17, 2002 and theFederal Court set-aside ‘habeas corpus’.
Kerajaan Malaysia, Menteri Dalam Negeri,and Ketua Polis Negara vs. Nasharuddin binNasir [2003] the Chief Justice clarify thestand of the court against decisions taken bythe executive concerning matters of nationalsecurity as: “…In matters of preventivedetention relating to national security, theJudges are the executive….”This attitude of non-hindrance of court against the decisions
taken by the executives has also continued to reflect in thefollowing other contemporary cases, particularlyAbdul RazakBin Baharudin & Ors vs. Ketua Polis Negara & Ors [2004]7 MLJ 267 and Ahmad Yani Bin Ismail & Anor vs. InspectorGeneral of Police & Ors [2005] 4 MLJ 636.
Thus, in eliminating the issue of national security from the
domain of the Malaysian judicial review, the concern
Federal Court judge, in the case of Kerajaan Malaysia,
Menteri Dalam Negeri, and Ketua Polis Negara vs.
Nasharuddin Bein Nasir [2003] No. 05-75-2002(B) held
that:
Continuing…
“…It Seems Apparent From These Cases That Where
Matters Of National Security And Public Order Are
Involved, The Court Should Not Intervene By Way Of
Judicial Review Or Be Hesitant In Doing So As These Are
Matters, Especially Within The Preserve Of The Executive,
Involving As They Invariably Do, Policy Considerations And
The Like….”
Inauguration of Electronic
Surveillance in Malaysian
Legislation.Primary Legislations For Domestic Security
The Security Offences (Special Measures) Act (“SOSMA”) 2012.
The Prevention of Crime (Amendment and
Extension) Act (“PCA”) 2013.
Sec. 4(1)
Police
Can
Arrest
&
Detain
Without
Warrant
Sec. 4(6); 7(1 &
4): Attach
Electronic
Monitoring
Device For
Surveillance Of
The Suspected
Criminals.
Sec. 6 (1, 2 & 3):
Power To Intercept
Communication
Transmitted
Through Post,
Message Or
Telephonic
Conversation .
Sec. 7(1)(b) & 7A
(1): Electronic
Monitoring
Device Shall
Attached With
Released
Suspected
Criminals Body
Sec. 7B &
7C:
Establishmen
t Of A
Prevention
Of Crime
Board
Headed By
Chairman.
Sec. 4(10) Of The SOSMA 2012 : E-
Surveillance Shall Have Effect
Notwithstanding Anything Inconsistent
With Art. 5, 9 & Sec. 117 Of FCM &
CrPC.Sec. 5(3) Of The SOSMA: Delay Of
Notifications Shall Have Effect
Notwithstanding Anything Inconsistent
With Art. 5 Of FCM.
Sec. 6(6) Of The SOSMA: The Power Of The Police Officer Or Public Prosecutor To Intercept
Communications Shall Have Effect Notwithstanding Anything
Inconsistent With Art. 5 Of FCM .
Sec. 7(9) Of The SOSMA: Special Procedures Relating To Electronic Monitoring Device Shall Have Effect Notwithstanding Anything Inconsistent With Art. 9 Of FCM.
Violation of Constitutional Rights.
Conflict that spring up
between Privacy Rights
& Security.
Conclusion and Policy
Recommendations.Firstly, Unnecessary Collection Of Information Over An Individual By The Security Agency Or By Any Other Public Or Private Authority Can Contravene Individual’s Privacy Right.
Secondly, Under S. 4(6&7) Of The Security Offences (Special Measures) Act 2012, Any Possible Health-related Effect Needs To Be Considered And Mitigated While attaching Electronic Device.
Thirdly, Under S. 7 And Schedule II Of The SOSMA 2012, The Investigating Officers Are Given Unlimited Power To Track, Monitor And Retain The Suspected Criminals’ Movement. There Should Be A Clear Guideline On How These Will Be Monitored So That The Purpose Of Putting This Electronic Device Could Be Achieved Without Violating The Privacy Right.
Fourthly, By Virtue Of S. 4(9) Of The SOSMA 2012, It Is Noted That There Is No Such Provision To Ensure The Confidentiality Of This Personal Report. Some Certainty In This Aspect Is Warranted Because The Officer Deals With Data In Electronic Form, Which Is More Prone To Leak, Disclosure Or Security Threats.
Last But Not Least, It Is Observed That There Is No Provision That Confers A Suspected Crime Offender To Appeal Or Contest The Ruling To Wear this Electronic Monitoring Device Or Otherwise To Ask The Reason Why He Needs To Wear Such Device.
