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Does the police have the right to check your phone?

It was recently reported by several news outlets that the Royal Malaysian Police have the right to check phones of civilians. Apparently, this is to ensure that it doesn’t contain obscene or offensive material as well as content that can threaten national security. The report was based on Deputy Home Minister Datuk Mohd Azis Jamman’s response to Alor Setar MP, Chan Ming Kai questions in Parliament.

The Deputy Minister had said that individuals must also be aware of their rights during a random check of their phones including requesting the identity of the police officer that is conducting the search. When he was asked if there were any reports of violation of standard operating procedures, Azis Jamman said that members of the public should report the matter to the nearest police station or to the headquarters at Bukit Aman.

When questioned if law enforcers tap phones, he said, “The police will not recognise whether or not a person is a politician or a businessman. As long as security is on the line, the police will do what is necessary.”

According to former IGP, Tan Sri Musa Hassan, the police force has no right to inspect phones of the public. He said that the police can only check their phones if they are involved in an investigation. The former IGP added there must be a police report and an ongoing investigation towards the person or if the police have a suspicion that the person is involved in a crime.

The Home Affairs Ministry has issued a statement yesterday to clarify that the Royal Malaysian Police will not conduct random phone checks on the public. It also mentions that the police can only request or confiscate phones belonging to suspects or those that are involved in an active investigation. The latest statement is in line with the former IGP’s remarks.

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The statement also urged the public to contact the complaints branch at 1-800-880-222 or by email at [email protected] if there are any enquiries or police misconduct.

What should you do if the police want to inspect your phone?

Civil liberties lawyer, Syahredzan Johan, has provided a couple of tips if a police officer requests to check your phone. Firstly, you have the right to ask the officer to produce a “kad kuasa” which is basically a police ID. Next, you can ask what’s the purpose of the inspection and what crime did they suspect you of committing.

If the police insist on checking, he would recommend passing the phone to them and do not start a fight. The last thing you want is to be arrested and get yourself into more trouble. After that, you can proceed to make a police report and file a formal complaint as recommended by the Home Affairs Ministry.

The lawyer has also given an example that took place during a student protest held in 2012. Social activist Fahmi Reza and other participants were detained by authorities for occupying Dataran Merdeka to seek higher education reforms. When DBKL (Kuala Lumpur City Hall) officers came to raid the site, they arrested Fahmi Reza but did not provide valid reasons for the arrest despite being asked repeatedly. He didn’t resist arrest and he was released on the same day after several hours.

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After his release, he sued the government, DBKL as well as the police for unlawful arrest, claiming that there’s no valid reason for the detention and there’s no proof that he had set up camp at Dataran Merdeka. A few years later, the High Court ruled that the arrest was unlawful and ordered both DBKL and the police to pay Fahmi compensation of RM5,000 and RM3,000 respectively. They are also ordered to pay exemplary damages of RM20,000 for DBKL and RM10,000 for the police.

With this example, Syahredzan wants to emphasise that following police orders doesn’t mean that you’re giving up and there’s always an opportunity for the public to uphold their rights. Therefore, it is advisable not to resist arrest if the police want to check your phone but you can fight back by bringing them to court.

[ SOURCE 2, IMAGE SOURCE ]

Alexander Wong