PETALING JAYA: The inspection of a person’s mobile phone at police roadblocks cannot be conducted in an arbitrary manner, says the Human Rights Commission of Malaysia (Suhakam).
It added that pursuant to Section 116B of the Criminal Procedure Code, a police officer with the rank of Inspector or higher is only permitted to access mobile or other digital devices subject to a legal search as part of an ongoing investigation, whereby the police have reasonable cause to believe that an offence has been or is being committed.
Sections 247 and 248 of the Communications and Multimedia Act 1998 also require the search and seizure of the digital device to be conducted in connection with an ongoing investigation, having reasonable cause to believe that an offence has been committed, it said in a statement yesterday.
Suhakam also called on the government to clarify the statement by Inspector-General of Police Tan Sri Razarudin Husain that police have the right to check an individual’s mobile phone should there be a police report lodged against that person, an investigation on the individual, or if they suspect the individual is involved in a crime.
However, Razarudin said these checks must be conducted respectfully and in accordance with existing laws, and should not be carried out randomly or without reasonable cause.
Suhakam said the public is encouraged to be aware of their basic fundamental rights, in particular when stopped, questioned or even arrested by the police.
“The Malaysian Bar Council has issued a booklet titled The Police and Your Basic Rights that lists scenarios with the police and what you can do to exercise your rights as a citizen.
“The public is reminded that if they encounter an arbitrary search where their mobile devices are searched without reasonable cause, to note down where the incident happened, the name and identification number on the police officer’s uniform and to lodge a police report as well as inform Suhakam via its complaints system” it said.
The public can contact Suhakam via email at: complaints@suhakam.org.my; website: aduan.suhakam.org.my; contact via phone or walk-in at its offices in Kuala Lumpur, Kota Kinabalu or Kuching.
“Suhakam reiterates the importance of every individual to be aware of their fundamental rights and for law enforcement officers to conduct these roadblocks in a lawful and responsible manner, with care and caution,” the statement said.
Malaysians Against Rape, Assault and Snatch Theft (Marah) founder Dave Avran said clear guidelines and oversight mechanisms should be in place to ensure checks by policemen on a motorist’s handphone are conducted in accordance with the law.
He said these guidelines should specify when and how phones can be examined, with limitations on the extent of personal data accessed.
“The police should follow strict procedures that respect individuals’ right to privacy and ensure checks are conducted fairly and transparently.
“There should be penalties for officers who abuse their authority, and avenues for complaints and redress should be accessible to the public,” he added.
The Alliance For a Safe Community chairman Tan Sri Lee Lam Thye said privacy is a fundamental right.
“No one should have access to personal phones unless, of course, it is a subject of a police investigation, a case, or an ongoing investigation where the information conveyed through the phone is directly related,” he said.
“It is important that the laws are clearly defined regarding when and under what circumstances the police have the right to ask for or check an individual’s phone,” he said.
Lee commended Razarudin for providing guidelines on the circumstances under which a police officer can check an individual’s mobile phone.
“He has assured the public of the right balance between investigating a crime and protecting their right to privacy,” he said.
