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EPIC --- Privacy and Human Rights Report 2006

Malaysia

Constitutional Privacy Framework

The Constitution of Malaysia does not specifically recognize a right to privacy,[3478] but does provide a conclusive list of fundamental rights, including freedom of assembly, speech and movement.[3479] This restrictive list of rights is due to the fact that, at the time of the drafting of the Constitution in 1956, the objective was to create a balance in maintaining a homogeneous nation embodying multi-racial, multi-religious, and multi-cultural people under a common flag, and to destroy the imminent threat of Communist influence that was prevalent at the time.[3480] Proceeding from such a foundation, which emphasizes state security vis-à-vis combating communism, the government has circumscribed these rights by law or practice, increasingly so in the name of anti-terrorism.[3481]

Data Protection Framework

A Personal Data Protection Bill has been repeatedly introduced to the Malaysian Parliament since 1998. To date, the Act has yet to be adopted. However, Datuk Dr Awang Adek Hussin, the Deputy Finance Minister, has promised passage of the bill in 2008.[3482] Proponents believe that the Act will provide increased confidence for online transactions by protecting individuals' data privacy.[3483]

Wiretapping and Surveillance Rules

The most controversial of Malaysia's laws remains the Internal Security Act (ISA), which was enacted in the 1960s in response to Communist insurgency. In the past, the ISA has been used to suppress both political opposition and peaceful dissent.[3484] Since 2001, the law has been used primarily against suspected Islamic militants and individuals suspected of counterfeiting and forgery.[3485] The ISA allows police to enter and search the homes of persons suspected of threatening national security without a warrant; police may also seize evidence. The lack of independent judicial oversight is the most fervent criticism of the ISA. Judicial review of arrests under the ISA is limited to questions of procedure; at no point are authorities required to produce either evidence or detailed charges. Police regularly use the ISA to search homes and offices, seize books and papers, monitor conversations, and take persons into custody without a warrant.[3486] Persons arrested under the ISA as potential threats to national security or public order can be held for up to 60 days without being charged. However, the internal security minister may extend the detention for up to two years, renewable indefinitely.[3487] Those individuals released before the end of their detention period may face “imposed restricted conditions.”[3488] However, the ISA does require that detainees are informed of the accusations against them, and that they are allowed to appeal to an advisory board every six months.[3489]

The government does not disclose the number of people so held, but in August of 2006, the Abolish ISA Movement estimated that there were 97 people in detention under ISA. They also reported that 11 detainees had been released in 2006.[3490] Although most of these individuals are allegedly connected to Islamic terrorist groups, but the use of the phrases "terrorist threat" and "terrorist" have increased markedly since September 11, 2001, and is now used to describe a litany of individuals or actions that previously would not have been so classified. The ISA does not provide precise definitions or criteria for determining whether an individual poses a threat.[3491] The Malaysian government has yet to offer public evidence against any of the detainees held under allegations of terrorism or bring them to trial.[3492] Many alleged terrorists are connected to political opposition parties.[3493] The ISA has been used in the past to intimidate and restrict political dissent.[3494]

Prior to September 11, 2001, there had been much public pressure – both from inside and outside the country – to repeal the ISA in favor of a more constrained security law, but the government has taken no action and is now unlikely to do so.[3495] Prime Minister Abdullah Badawi, who took office in October 2003, has begun to remedy some of the abuses under the ISA. In 2004, Abdullah provided journalists with access to the notorious Kamunting Detention Center where ISA detainees are held. Further, the government announced that the Human Rights Commission of Malaysia, Suhakam, could investigate allegations of abuse at short-term detention centers where detainees are held before they are sent to Kamunting. In 2006, the government periodically allowed Suhakam officials to visit various immigration detention camps and prisons. However, the government continues to bar the independent monitoring or investigation of Kamunting.[3496]

The government has also detained 700 people for alleged criminal activity indefinitely under the Emergency Ordinance.[3497] The Ordinance was enacted in 1969 as a temporary means to deal with race riots. Government officials have admitted that the Emergency Ordinance is used when insufficient evidence exists to charge individuals. Under the law, detainees may not challenge the merits of their arrest.[3498]

Other laws with implications for privacy include the Anti-Corruption Act,[3499] the Companies Act,[3500] and the Penal Code.[3501] The Anti-Corruption Act empowers the Attorney General to authorize the interception of any messages sent or received through any means of communication and wiretapping of telephones in corruption investigations.[3502] Information obtained in this manner is admissible evidence in a corruption trial.[3503] The Companies Act grants the Registrar of Companies broad powers to block or disband organizations deemed prejudicial to national security or the national interest. This authority has been used to prevent international human rights organizations from establishing domestic operations. Section 509 of the Penal Code provides criminal penalties for insulting "the modesty of any person" or "intruding upon the privacy of [any] person" by uttering any word, sound or gesture, or exhibiting any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person. A new anti-terrorism amendment to the Penal Code gives the government broader authority to secretly install surveillance devices on private property.[3504]

Most government agencies plan to implement Oracle Corporation’s citizen data hub. This database would include information on individuals including background, educational achievements, and health records. Proponents argue that that the database will allow government agencies to create and maintain a comprehensive, accurate citizen data repository for better decision making, improved response times, and better citizen services.[3505]

In 2005, the government began implementing a biometric system to keep a record of foreigners in the country.[3506] It is now fully operational at every immigration depot in the country.[3507] The program is intended to detect illegal immigrants and foreign workers entering and leaving Malaysia.[3508] Proponents believe it is more secure than passports that can be altered or forged.[3509] Those with a criminal record are not admitted into the country.[3510] The Home Affairs Minister has also reported that a biometric system will record the fingerprints, photographs, and background of foreigners being held at temporary detention camps throughout the country.[3511] There are currently 1.9 million foreign workers in Malaysia.[3512]

People found to be in Malaysia illegally face a mandatory charge of five years imprisonment and six strokes of the cane under the Immigration Act.[3513] The Rela, a volunteer civilian army, has been authorized by the government to question and arrest undocumented immigrants. In February, the bodies of five immigrants were found after a Rela raid, and members of Rela also clubbed and detained 60 migrant workers from India.[3514]

Video Surveillance

The government decided in 2004 to install closed circuit television (CCTV) cameras in major cities with the purpose of curbing snatch thefts. Local councils installed the cameras in public spaces such as bridges, light rail transportation or bus stations, night markets and dark lanes. CCTV systems are connected to district police stations where images are monitored. Additional CCTVs were installed at KL International Airport (KLIA) in 2006.[3515] The Internal Security Ministry reported in 2004 that the installation of CCTVs has proven effective – Kuala Lumpur had a 50 percent drop in snatch thefts, while the country as a whole saw a 26.2 percent drop.[3516] Additional temporary cameras are being installed in less populated areas to help with traffic problems and to control crime.[3517] Bar Council chairman Khutubul Zaman Bukhari has expressed his view that there is no need to incorporate privacy safeguards for the use of CCTV in Malaysia’s proposed Personal Data Protection Act, as long as the images recorded "are used for the sole purpose of preventing criminal acts."[3518]

Some critics assert that CCTV could be used not only against snatch thieves but also to spot and nab courting couples caught on camera displaying affection in public, which is not allowed in Malaysian society.[3519] For a period of time, the state of Malacca recruited peepers, vulgarly referred to as mat skodeng, to spy on young people to stop the moral deterioration of youth.[3520] This effort has since been called off.[3521] In 2004, a couple in Kuala Lumpur were arrested and charged with disorderly behavior for passionately embracing in a park. Although the case has yet to be decided, in 2006, the federal court denied a challenge to the charges.[3522]

National Identity Card

Malaysians generally have the right to travel, live, and work where they please; however, the government restricts these rights in some circumstances. The eastern states of Sabah and Sarawak have the right to control immigration and to require citizens from peninsular Malaysia and foreigners to present passports or national identity cards for entry. The adoption of a national identity smart card makes tracking citizens easier.

Malaysia was one of the first countries in the world to use a chip-based identification card that is also a multipurpose smart card.[3523] Since 1999, the Malaysian government has been gradually phasing in a multipurpose national identity smart card.[3524] The card, known as "MyKad," incorporates both photo identification and fingerprint biometric technology.[3525] MyKad currently has seven functions other than identification: driver's license, passport information, health information, e-cash function (referred to as electronic purse, or e-purse), toll payment (or Touch 'n Go), automated teller machine, and public key infrastructure.

MyKad is currently optional, but it automatically replaces other forms of expired identification and is quickly becoming a de facto requirement to access certain government and private-sector services. No official documents can be signed without a MyKad card, and individuals may not apply for licenses without one.[3526] In December 1998, the government began requiring cybercafés to obtain name, address, and identity card information from patrons. However it lifted this requirement in March 1999.[3527] In some cases there may be penalties for not carrying the card. In addition, individuals who lose their cards are now subject to fines. At this time, approximately 1000 MyKad cards are reported missing each day.[3528]

In 1998, the government announced that people not carrying identification cards risk being detained by immigration authorities.[3529] It is the government's intention that all Malaysians over the age of 12 be registered in the MyKad system.[3530] As of May 31, 2007, only 381,978 Malaysians were still unregistered. In the past, many people expressed discomfort with the all-in-one feature of MyKad. Those under the age of 12 are encouraged to apply for a junior version of the MyKad, the “MyKid,” which differs only in its lack of a photograph and thumbprint biometric. In addition, every baby born in 2003 or later is provided with MyKad as a "lifelong identification document and a personal database."[3531]

The Malaysian government originally proposed placing the religious affiliation of all citizens on the MyKad, but complaints from the country's non-Muslim ethnic groups prompted the government to limit such identification to Muslims only. In January 1999, it was announced that Islamic religious authorities in the capital, Kuala Lumpur, would be equipped with portable card readers in order to instantly verify the vows of Muslim couples found in "close proximity." In 2002, the Prime Minister proposed adding marital status and voting constituency information to the cards for the benefit of religious authorities and to minimize electoral fraud, respectively. Both proposals were sharply criticized by opposition Member of Parliament Teresa Kok as being an unnecessary invasion of privacy.[3532] The anonymity of balloting is already a matter of concern for privacy advocates, even without MyKad. Traditional ballots are marked with a serial number that can be matched against a voter's name. While there is no evidence that the government has ever tracked individual votes, some opposition leaders allege that the potential to do so has had a chilling effect on some voters, particularly civil servants.

With so much personal information stored on the MyKad, even proponents of the card have acknowledged inherent privacy risks: "[h]aving the smart card will probably increase theft . . . because the attraction is there. There is a lot of personal information stored [on the card], including buying patterns which would attract (card cloning) syndicates," according to industry analyst Jafizwaty Ishahak.[3533] It is widely known that anyone with a card reader can access all information contained in the MyKad.[3534] Almost 2.1 million cases of lost or stolen MyKad cards have been reported since the program’s inception.[3535]

The success of the Malaysian MyKad program is the driving force behind a proposed regional ID card for the 10 Association of South East Asian Nations (ASEAN).[3536] In 2001, the group agreed to develop an ASEAN smart card to allow free movement for individuals within the members’ countries. The planned target date is 2009.

Freedom of Information

Rights pertaining to freedom of information do not exist in Malaysia.[3537] Due to the absence of this right, the government has sometimes directly restricted the release of information deemed embarrassing or prejudicial to national interests. For example, the government has had a policy of prohibiting public disclosure of air pollution readings and deaths due to dengue fever.[3538]

Activist groups are advocating adoption of Freedom of Information (FOI) laws in Malaysia. A National Seminar on Freedom of Information Legislation was held in Kuala Lumpur in September 2004. Legal experts, NGOs, journalists, and FOI specialists have built a coalition to promote FOI legislation in Malaysia. The groups also recommend that all secrecy provisions in other laws should be reviewed, and amended or repealed if necessary. The Writers Alliance for Media Independence (WAMI) reported that in 2007, Malaysians enjoyed less freedom of information than any of their neighbor countries.[3539] The group also reported that in 2006, four newspapers were banned. WAMI seeks adoption of a FOI Act, and they also seek reform or repeal of the Official Secrets Act, the Internal Security Act, the Printing Presses and Publications Act, the Sedition Act, and the Communications and Multimedia Act.[3540]

International Commitments

Since September 11, 2001, Malaysia's relationship with the United States has changed dramatically. Prior to the attacks, the US had been publicly critical of Malaysia's human rights record and its misuse of the ISA. Since the attacks, "Malaysia has cooperated extensively with the US in counterterrorism efforts, regularly sharing intelligence information and offering access to ISA prisoners for interrogations." Together, the countries established the Southeast Asia Regional Center for Counter Terrorism in Malaysia in 2003. The US has provided assistance and training for the center.[3541]

Malaysia is a member of the Association of Southeast Asian Nations (ASEAN), which is comprised of 10 nations. In 2004, this body assumed a more prominent role in regional affairs, "providing a forum for member states to discuss increased cooperation and information sharing on security issues."[3542] However, ASEAN has not made human rights a priority and has failed to speak out on issues including Malaysia's denial of due process to ISA detainees.[3543]

Malaysia is a member of the Asia-Pacific Economic Community, and has participated in the Electronic Commerce Steering Group‘s Data Privacy Subgroup since 2003. The Privacy Subgroup developed the APEC Privacy Framework, which outlines nine privacy principles including the prevention of harm, notice, collection limitation, uses of personal information, choice, integrity of personal information, security safeguards, access and correction, and accountability. APEC adopted the Privacy Framework in 2004, and member countries’ endorsement of the Framework means that they will continue efforts to develop a “consistent approach to information privacy protection across APEC member economies, while also avoiding the creation of unnecessary barriers to information flows.”[3544]

The Asia Pacific Coalition Against Unsolicited Commercial E-mail (APCAUCE), which includes member groups from Australia, Hong Kong, China, India, Korea, Malaysia and New Zealand, held a Net Abuse Workshop in Kuala Lumpur in February 2004, a July 2004 workshop in Kathmandu, Nepal, and a 2005 workshop in Kyoto, Japan.[3545] The Malaysian government does not support national legislation on unsolicited commercial e-mail, or spam, but instead favors consumer education and action by Internet service providers (ISPs).[3546]

Malaysia is a signatory to the Universal Declaration of Human Rights, but the legislation that created the National Human Rights Commission (Suhakam) restricts the application of the Declaration to those "fundamental liberties provided for" in the Constitution and to those provisions consistent with the Constitution. In 1999, prior to Suhakam's creation, opposition leaders and NGOs, including the Bar Council, criticized the definition of human rights as too narrow.

[3478] Ultra Demision v. Kook Wei Kuan, 5 CLJ 285 (2004).
[3479] Constitution of Malaysia, available at <http://www.helplinelaw.com/law/constitution/malaysia/malaysia01.php>; see also Caslon Analytics Privacy Guide Asia <http://www.caslon.com.au/privacyguide6.htm#Malaysia>.

[3480] Federation of Malaya Constitutional Commission, 1956-1957 Report at paragraph 161.

[3481] The Malaysian government also bans membership in unregistered political parties and unregistered organizations. US State Department, Country Reports on Human Rights Practices 2006, Malaysia, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78780.htm>.

[3482] “Tipping Privacy Law in Public’s Favour,” New Strait Times, July 16, 2007.
[3483] Rozana Sani, "Longer Wait for Legal Online Protection," New Straits Times – Computimes, February 21, 2005.

[3484] Human Rights Watch, World Report 2005, Malaysia, available at <http://hrw.org/english/docs/2005/01/13/malays9822.htm>.
[3485] Human Rights Watch, World Report 2007, Malaysia, available at <http://hrw.org/englishwr2k7/docs/2007/01/11/malays14870.htm>.
[3486] Id.
[3487] Amnesty International, Report 2005, Malaysia, available at <http://web.amnesty.org/report2005/mys-summary-eng>.
[3488] US State Department, Report on Malaysia 2006, supra.
[3489] Id.

[3490] Id.
[3491] Amnesty International, Report 2005, supra.
[3492] Human Rights Watch, World Report 2005, Malaysia, supra.
[3493] Fergus Shiel, "Rights Abuses Spread after 9/11," The Age (Melbourne), April 16, 2003, at 6. Minister Dr. Rais Yatim, of the Prime Minister's Department Datuk Seri, has argued that a broad legal definition of "terrorism" is necessary in order to effectively combat terrorist threats and has noted that the United States has adopted a similar stance with the passage of the USA PATRIOT Act. For a discussion of Malaysian Prime Minister Mohamed's definition of "terrorism," See Abdul HaSeeb Ansari, Terrorism, National Integrity and Human Rights: A Critical Appraisal 3 Malayan L.J. 205 (2002).
[3494] Id.

[3495] Id.
[3496] US State Department, Report on Malaysia 2006, supra.

[3497] Human Rights Watch, World Report 2007, Malaysia, supra.
[3498] Id.

[3499] See Act 575, <http://politikus.xparte.com/aca1997.pdf>.
[3500] Ministry of Domestic Trade & Consumer Affairs, Companies Act 1965, <http://www.kpdnhep.gov.my/index.cgi?action=pub&pub=akta_syarikat_1965>.
[3501] See Act 574, <http://www.unhcr.org/cgi-bin/texis/vtx/rsd/rsddocview.html?tbl=RSDLEGAL&id=3ae6b5cf0>.
[3502] US State Department, Report on Malaysia 2006, supra.
[3503] Id.
[3504] Id.

[3505] "Government Agencies to Implement Oracle Citizen Data Hub," Bernama – The Malaysian National News Agency, March 12, 2005.

[3506] "13.1Mln MyKads Issued, 10,000 Unclaimed – Abdul Rahman," Bernama – The Malaysian National News Agency, December 9, 2004; "Work Permits Using Biometric System to be Introduced Next Year," Bernama – The Malaysian National News Agency, August 21, 2004.
[3507] Dewan Rakyat, “BiometricWay to Monitor Foreign Workers,” The Star Online.com, June 26, 2007, available at <http://star-techcentral.com/tech/story.asp?file=/2007/6/26/technology/20070626115333&sec=technology>.
[3508] "Work Permits Using Biometric System to be Introduced Next Year," supra.
[3509] Rakyat, supra.
[3510] "13.1Mln MyKads Issued, 10,000 Unclaimed – Abdul Rahman," supra.
[3511] Bernama, October 18, 2004, supra.
[3512] “Biometrics for Clean Workers,” The Star Online.com, November 24, 2006.

[3513] Human Rights Watch, World Report 2007, Malaysia, supra.
[3514] Id.

[3515] "COE Completes CCTV System Upgrade for Malaysia Airlines,” Security World Hotel, June 6, 2006, available at <http://www.securityworldhotel.com/uk/news.asp?NAV=1&YearSearch=2007&type=1&id=36342>.
[3516] "Computerised System to Enable Speedier Police Response to Crime Scene," Bernama – The Malaysian National News Agency, December 1, 2004.
[3517] Dharmender Singh, “CCTV Cameras for Subang Jaya,” The Star Online, Juky 13, 2007, available at <http://star-techcentral.com/tech/story.asp?file=/2007/7/13/technology/20070713114432&sec=technology>.
[3518] Abdul Razak Ahmad, "Smile, You Aren’t on Camera Yet," New Straits Times, July 11, 2004.

[3519] Id.
[3520] Syed Nadzri, "Danger of the Overzealous, Voyeuristic Moral Guardians," New Straits Times, January 13, 2005.
[3521] Syed Nadzri, "Civil Liberties Trampled on with Impunity", United Press International, March 26, 2005; "Malaysia Restricts 'Moral Policing,'" supra.
[3522] Jonathan Kent, “Kiss Warning to Malaysia Tourists,” BBC News, April 5, 2006.

[3523] Anna Maria Samsudin, "All Offices Equipped to Issue Smart Cards," New Straits Times, January 28, 2005.
[3524] "Privacy of MyKad Holders to Be Protected by Law," New Straits Times, May 19, 2004, at 6.
[3525] "Wise Up to Role of Smart Card," The Star, December 15, 2002.

[3526] “Loss of 2.3 Min ICs Worrying, Says Tan,” Bernama – The Malaysian National News Agency, June 28, 2007, available at <http://www.bernama.com.my/bernama/v3/news.php?id=270278>.
[3527] "Cabinet: Cybercafes not Subjected to Restrictions," New Straits Times, March 18, 1999.
[3528] “No Fine for MyKad Replacement if There is Police Report,” Bernama – The Malaysian National News Agency, July 4, 2007.

[3529] Annie Freeda Cruez, "Malaysians Told: Carry ICs or Risk Detention," New Straits Times, May 14, 1998.
[3530] Fauziah Muhtar, "Hope for More MyKad Usage Opportunity," New Straits Times – Computimes, December 23, 2004.
[3531] Id.

[3532] News Release, "Government Proposal to Add Marital, Constituency Information to MyKad Should Be Debated," MP for Seputeh Teresa Kok, September 27, 2002.

[3533] IRIS Corp. Berhad, “Wise up to Role of Smart Card,” available at <http://www.iris.com.my/News/new_detail.asp?id=82>.
[3534] "Privacy of MyKad Holders to Be Protected by Law," supra.
[3535] “No Fine for MyKad Replacement if There is Police Report,” supra.
[3536] Kevin Woodward, “Going Global with National ID,” Car Technology, Jun 1, 2005.

[3537] In Malaysia today there is an absence of freedom of information laws. However, there is a growing debate over the need for such a statute. In the words of HRH Sultan Azlan (Former King and Lord President of Malaysia): "I believe that we need a Freedom of Information Act, under which members of the public have a right of access to specifically requested public records, and that these should be made available, as of right, within a reasonable time. A Freedom of Information Act will greatly improve the quality of trust in this country." [1986] JMCL at 22.

[3538] United States State Department Country Report, on Human Rights Practices in Malaysia, 2004, available at <http://www.state.gov/g/drl/rls/hrrpt/2004/41649.htm>.

[3539] WAMI, “Malaysia: Richer but Less Free than its Neighbors,” May 4, 2007. available at <http://www.wami528.com/index.php?option=com_content&task=view&id=53&Itemid=32>.
[3540] Id.

[3541] Id.

[3542] Human Rights Watch, World Report 2005, Malaysia, supra.
[3543] Id.

[3544] APEC Privacy Framework, 2004, available at <http://www.apec.org/apec/news___media/2004_media_releases/201104_apecminsendorseprivacyfrmwk.MedialibDownload.v1.html?url=/etc/medialib/apec_media_library/downloads/ministerial/annual/2004.Par.0015.File.v1.1>. See also APEC Media Release,
“APEC Ministers Endorse the APEC Privacy Framework,” November 20, 2004, available at <http://www.apec.org/apec/news___media/2004_media_releases/201104_apecminsendorseprivacyfrmwk.html>; Marc Rotenberg, ed., The Privacy Law Sourcebook: United States Law, International Law, and Recent Developments (EPIC 2005) 508-23 (“APEC Privacy Framework”).

[3545] See <http://www.apcauce.org/>.
[3546] "Asian Countries Join US-Led Coalition Against Spam," Channel NewsAsia, March 16, 2004.