The Royal Malaysian Police Force is in talks with the Attorney-General’s Chambers to monitor the movements and whereabouts of certain accused persons released on bail by tagging them with an electronic monitoring device (“EMD”), which is a new technological security measure introduced by the Security Offences (Special Measures) Act 2012 (”SOSMA”) and the Criminal Procedure Code (“CPC”).
The police are expected to start using the EMD in October 2013. Both the SOSMA and the CPC also introduce new provisions that allow interception of communications by the authorities.
The SOSMA was enacted to replace the archaic and draconian Internal Security Act 1950.
It provides for special measures relating to security offences for the purpose of maintaining public order and internal security. The CPC, on the other hand, sets out rules relating to criminal procedure in Malaysia for matters such as the mode of arrest; a search of body, property or premises; police investigation of a case; prosecution of an accused person; procedure for trial, etc.
The police claim that this is part of their on-going efforts in utilising all the existing laws and technology available to combat serious and organised crimes, in light of the spate of high-profile shootings and the surge in crime rates in the country.
This article focuses on the two new technological security measures introduced by the SOSMA and the CPC, namely, the use of EMD and the interception of communication by the authorities.
The use of EMD
Under the law, a court may, after taking into account the nature of the offence and the circumstances of the case as being sufficient to secure an accused person’s attendance at court, order for an EMD to be attached to the accused person while he is released on bail.
Before an accused person is to be attached with an EMD, he will be given an opportunity to be heard as to why he should not be attached with an EMD. Failing to comply with the electronic monitoring requirement will result in the bail being revoked by the court.
Any person who tampers or destroys the EMD shall be liable to a fine not more than RM5,000 or to imprisonment, not more than 3 years, or both, as well as to pay for any damage to the EMD arising from his action.
The EMD can be either a device which is attached to a person (usually attached to the person’s wrist or ankle); a portable tracking device or a site monitoring device.
These devices with built-in Global Positioning System (GPS) are linked to a receiving centre by means of a fixed line, radio frequency, satellite or other technology. They are capable of transmitting to the receiving centre information relating to the particular place at which the device is located at a particular time and the functioning of the device and capable of detecting any tampering with the device and transmitting to the receiving centre information relating to such tampering.
Using EMD to track the movements and whereabouts of accused persons has proven to be quite effective in many jurisdictions around the world.
It is said that the EMD will act as a restraint on recidivists (convicted criminals who return to crime after they are released from prison) as gangs are unlikely to rely upon or re-engage with those who are being monitoring. EMD can be used to ensure that the accused person remains in a designated place or does not enter prescribed areas or approaches certain people such as the complainants or the witnesses. The police will be immediately alerted if the accused person ignores or goes against the court’s order.
It will also be easier for the police to track down the location of the accused person if he jumps bail.
Interception of Communication of the EMD by the Authorities
Under the law, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of an offence, may authorize any police officer –
(a) to intercept, detain and open any postal article in the course of transmission by post;
(b) to intercept any message transmitted or received by any communication; or
(c) to intercept or listen to any conversation with any communication.
The Public Prosecutor also has the power to require a communication service provider to intercept and retain communication and authorise a police officer to enter any premises to install any interception devices.
Any information obtained from such interception shall be admissible in evidence at trial. Interestingly, the SOSMA even gives power to a police officer not below the rank of Superintendent of police to perform the interception without the authorization of the Public Prosecutor in urgent and sudden cases where immediate action is required leaving no moment of deliberation.
What this means is that the authorities can “eavesdrop” or “wiretap” any telephone lines, emails, letters or even web surfing habits without a warrant, as long as the Public Prosecutor considers that it is likely to contain any information relating to the commission of an offence.
Provisions relating to the interception of communication by the authorities are not something very new in Malaysia.
Similar provisions are already found in other legislation such as the Communications and Multimedia Act 1998, Malaysian Anti-Corruption Commission Act 2009, the Strategic Trade Act 2010, Copyright Act 1987, etc.
However, do note that the laws cited above are restricted to communication data only.
If the data does not form part of the communication, as far as the law is concerned, the authorities have no power to intercept/access or conduct surveillance on those data unless they have obtained a warrant to access such data.
Many have criticised that the Public Prosecutor should not be given such a broad power to intercept communication. While it is true that in certain circumstances, interception of communication may be effective in preventing planned crimes and collecting evidence, it should be dealt within the parameter of natural justice coupled with adequate checks and balances by an independent body.
For example, in the UK, the police must obtain a warrant from the Secretary of State before it can carry out interception of communication.
The Secretary of State will only issue a warrant if it is satisfied that the police have met the tests of necessity and proportionality. The Secretary of State also publishes an annual report showing the number of warrants issued in a year. The law also does not allow the data collected from interception be used in court as evidence.
In the US, prior to the 9/11 terrorist attacks, it was extremely difficult for the authorities to wiretap communication as it must obtain a “super-warrant” (because it was harder than getting a regular search warrant) from the court, and the authorities were subject to strict oversight and variety of strong privacy protections.
However, things have changed shortly after the terrorist attacks. Certain authorities such as the National Security Agency and the Central Intelligence Agency have been known to break these laws by conducting widespread electronic surveillance on millions of Americans’ telephone and Internet communications, with the help from major US-based telecommunications and Internet companies. In one lawsuit filed against the US Government, a thirty-year NSA veteran claims that the NSA has collected almost 20 trillion transactions over the past 11 years.
Conclusion
The police are increasingly using technology to fight crimes. Police cars are equipped with cameras and GPS monitoring and tracking devices; crime scenes are videotaped and photographed; CCTV security cameras are placed at strategic locations throughout the main streets and highways, etc.
It remains to be seen as to whether the use of these technologies is illegal and unconstitutional as it could potentially amount to a violation of Article 5 (right to life, personal liberty and privacy) and Article 9 (right to freedom of movement) of the Federal Constitution.
Having said that, it is understandable that while the criminals are resorting to more sophisticated technology in committing crimes, the authorities should also step up their efforts in fighting crimes. The key is always about striking a fair balance between maintaining national security and protecting the privacy of individuals at the same time.
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About the author:
This article was written by Edwin Lee Yong Cieh, Partner of LPP Law – law firm in Kuala Lumpur, Malaysia (+6016 928 6130, [email protected]). Feel free to contact him if you have any queries.
This article was first published in CHIP Magazine Malaysia.
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.
Edwin is a corporate and technology lawyer. He is also the founder and deputy managing partner of Lee & Poh Partnership (LPP Law). Edwin has advised a range of companies from technology startups to multinational corporations on a range of matters. In 2020, Edwin was named as a Malaysian Rising Star by Asian Legal Business, a finalist for the Young Lawyer of the Year at the ALB Malaysia Law Awards as well as a lawyer in the annual ALB publication of Asia 40 under 40.
View his full profile here.
