Privacy issues in electronic surveillance in Malaysia : a comparative analysis between common law and the shari`ah

Abstract

With the profound proliferation of sophisticated technologies throughout the globe, the efficacy of electronic surveillance has been intensifying ostentatiously over the last two decades. The ratiocination behind conducting e-surveillance is manifested from the point of vexation of national security. However, such event must be carried out by showing probity and esteem for inherent privacy right of every individual. The newly adopted Security Offences (Special Measures) Act (“SOSMA”) 2012 and the amended Prevention of Crime (Amendment and Extension) Act (”PCA”) 2014 have raised new controversies relating to constitutional and privacy issues in Malaysia by allowing the police to impose electronic monitoring as well as other types of technologically-aided surveillance over the suspected or arrested criminals. This collection and processing of individuals’ personal data by the security officers through surveillance intersect with a very basic notion of individuals’ data privacy and freedom of liberty which were protected by the Malaysian Federal Constitution to some extent. With latest legislative and judicial supports thrown on the right to data privacy of individuals, questions now emerge on whether this support to privacy right will be short-lived by the newly-passed security laws such as SOSMA and PCA which legally introduce the power of electronic surveillance in Malaysia? This paper seeks to initially explore this intersection and to outline the roadmap for better legal development in Malaysia. This paper is part of the study conducted by the authors under the Fundamental Research Grant Scheme (FRGS) commissioned by the Ministry of Education, Malaysia.