Proper search or intrusion?

I RECEIVED a text message from a journalist recently asking whether a police officer can stop a member of the public and inspect his handphone.

The journalist’s query reminded me of a story I heard some time ago from friends in Kedah.

A young man was on his way home from Gurun when he was stopped at a roadblock.

A policeman asked for his driver’s licence and handphone. He then proceeded to check the text messages.

The young man was also asked whether he was active in politics.

When he replied “No”, he was allowed to go.

I reckon the journalist’s interest in the “stop and search law” was piqued by a recent statement in Parliament by Deputy Home Minister Mohd Azis Jamman that policemen can inspect mobile phones of individuals under Section 233 of the Communications and Multimedia Act 1998 (CMA) to ensure there are no forms of communication that are obscene, offensive, or threatening to the security of the people and nation.

Azis, however, reminded the public to be aware of their rights during these “random police checks”, including requesting the identity of the police officer, in case there is a breach of the standard operating procedure (SOP) by the officer.

The deputy minister was responding to a question from a member of parliament on whether there were any reports of SOP violations against police personnel who inspected the mobile phones of members of the public.

He said that if any individual felt a policeman had violated an SOP, he could make a report at the nearest police station or at Bukit Aman.

Section 233 of CMA provides for the offence of “improper use of network facilities or network service”.

Subsection (1) states that any person who “initiates the transmission” of any comment or communication “which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person” has committed an offence.

Spreading false news by a WhatsApp message is an offence under this section. Upon conviction, the person can be fined up to RM50,000 or given a prison term not exceeding one year.

Apart from CMA, the Police Act 1967 gives the police “general powers” to maintain law and order, preserve peace and security, prevent and detect crime, apprehend and prosecute offenders, collect security intelligence (Section 3), as well as the power to “stop and search” if there are reasonable grounds or probable cause to do so (Section 24).

I took a quick look at the “stop and search” SOP of the City of London Police, which states that power, if used fairly and effectively, can play an important role in detecting and preventing crime and fighting terrorism.

Under the SOP, the power must be exercised “fairly, responsibly, with respect for people being searched and without unlawful discrimination.

“The intrusion on the liberty of the person stopped or searched must be brief.”

Apart from CMA and the Police Act, several provisions in the Criminal Procedure Code (Act 593) also empower the police to conduct a search of the person and his possessions.

All these actions must be done in good faith and with good reasons. Police not in uniform must show their authority cards.

Members of the public should take note that police officers of the rank of inspector (and above) carry blue identification cards, while lower level officers carry yellow cards and reserve policemen carry white IDs.

Understandably, there has always been “tension” between “individual privacy” on one side and “law enforcement” or “national security interests” on the other.

The fight is between “it is none of your business” on the one side and “what do you have to hide?” on the other side.

Finding the right balance has not always been easy. When does a legal and proper search end and an illegal intrusion begin?

The dividing line is “probable cause”.

In simple language, a “probable cause” requires a higher standard than mere suspicion, but lower than a standard required to secure a conviction.

If the surrounding circumstances (such as time, place, manner) show that there are actually no reasonable grounds or probable cause for the police to exercise their “stop and search” power against an individual, then an unlawful intrusion (or invasion of privacy) has been committed.

Currently, there is no privacy act in Malaysia.

The writer, a former federal counsel at the Attorney-General’s Chambers, is deputy chairman of Kuala Lumpur Foundation to Criminalise War