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”).
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.
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.