Sometimes it is very frustrating when you receive phone calls from insurance companies or credit card agencies offering you their promotional packages. The first question popped up in your mind is how they managed to know your personal information data which is supposedly private. The answer is simple. In Malaysia, your privacy is not as per right. In other words, you cannot cry for your privacy right no matter how you crave for it. I have commented on this issue in my dissertation previously.

Federal Constitution is the Supreme Law of the country and Part II of the Constitution provides fundamental liberties to the citizen to enjoy individual rights within the ambit of law. It has been suggested that ‘The founding fathers of our Constitution envisaged the Malaysian judiciary to act as the bulwark to protect and secure an individual's fundamental liberties enshrined in Part II of the Federal Constitution’ (Thomas, T. (2001). Human Rights in 21st Century Malaysia. Insaf, The Journal of the Malaysian Bar , 91-106). However, the meaning of ‘fundamental liberties’ has not been explained neither by the Reid Commission nor the White Paper when drafting the Federal Constitution in Malaysia (Bari, A., & Shuaib, F. (2006). Constitution of Malaysia: Text and Commentary 2nd edn. Kuala Lumpur: Pearson ). Perhaps, it was purposely not explained so that the courts will have legal freedom to interpret the phrase ‘fundamental liberties’ widely in line with the local and current needs.

It is important to note that the Constitution is silent on the issue of rights to privacy despite being recognised as one of the fundamental human rights under Article 12 of the United Nations Universal Declaration of Human Rights (UDHR) (El Islamy, H. (2005). Information Privacy in Malaysia: A Legal Perspetive. Malayan Law Journal, xxv-xlix). However, based on the Human Rights Commission of Malaysia Act 1999, the rights under UDHR shall be given regard to the extent it is consistent with the Federal Constitution. Nonetheless, it is not clear whether privacy right under UDHR is inconsistent with any other provision in the Constitution. It has been further argued by El Islamy that in the absence of express provision on the right to privacy, any claim to right of privacy must be based on other related constitutional right such as right to life or personal liberty or right to property (El Islamy, 2005).

However, the first Malaysian case on privacy is Ultra Dimension Sdn. Bhd v. Kook We Kuan [2004] 5 CLJ 285 involving a claim for breach of privacy pertaining to photograph of a group of kindergarten pupils published in several local newspapers advertisement. One of the legal issues was whether invasion of privacy is a recognized tort action under the Malaysian law. Faiza Tamby Chik J held that right to privacy is not recognized under the Malaysian law since it is not recognized under English common law based on the decision in Kaye v. Robertson. The learned Judge further cited the definition of privacy right as ‘right to be alone and live free from all intrusion by others’ is different from the phrase ‘life’ and ‘personal liberty’ in Article 5 of the Constitution. Therefore, it was concluded that rights to privacy do not come under the purview of Article 5 of the Federal Constitution.

Consequently, the decision in Ultra Dimension reflects the stance of Malaysian courts for not recognising privacy as part of the constitutional rights and laws in the country. However, the judgment in Ultra Dimension must not be viewed as a ‘closed legal gate’ to deny recognition of privacy right in Malaysia. It is still open to legal argument that the learned judge failed to take into consideration the extent of the provision pertaining to the rights to privacy under UDHR vide section 4 (4) of SUHAKAM Act 1999. Further, there is no legal provision or decision to indicate any inconsistency between the privacy rights under UDHR with the Constitution that will result the former not to be regarded in Malaysia. As a result, Ultra Dimension shall not be regarded as a conclusive legal argument to prevent any attempt to regard privacy right under UDHR to the Malaysian citizen.

Be as it may, personally speaking such potential legal argument is not suffice to convince the judiciary as well as the general public that there is a ‘hope’ that privacy right is recognised in Malaysia. The proposed draft Personal Data Protection Bill in year 2000 could be regarded as a positive step towards recognising and providing right to privacy in the country. However, that Bill is yet to become law and as long as it is not passed in the Parliament, there is no statutory protection available to individual citizen in Malaysia against any disclosure of personal data without consent.

But again the main question for the Malaysian lawmakers to really consider is whether the Personal Data Protection law is sufficient to protect the individual privacy? In my personal opinion, such law is not sufficient and could be argued to be ultra vires the provision in Federal Constitution despite that the Constitution is silent on the matter relating to privacy right. It is commendable to explore the wisdom behind the recommendation made by the Commission 1956-1957 Report in relation to privacy rights. Based on the Federation of Malaya Constitutional Commission, 1956-1957 Report at paragraph 161, it has been recommended that the Constitution defines and guarantees certain fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life. Further, paragraph 162 states that ‘Our recommendations afford means of redress, readily available to any individual, against unlawful infringements of personal liberty in any of its aspects’.

Ideally speaking, the word ‘personal liberty’ and the phrase ‘...in any of its aspects’ in the report must be given a wider interpretation to include right to privacy to be part of the fundamental liberty rights. Interestingly, the right to privacy was purposely not specifically stated in the Constitution at the time of drafting of the Constitution in 1956. It was suggested that the main objective of restricting such right was to create a balance in maintaining a homogeneous nation and to protect from Communist threat.
(http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-559517).

Therefore, it is now open to legal argument whether the spirit of the Constitution drafted in 1956 has indefinite intention to refuse rights to privacy as one of the constitutional rights in Malaysia. In the absence of communist threat in the modern days and the country’s political stability for the past 51 years, it is not in the interest of justice to restrict such privacy rights in the advent of new sciences and technologies development. Like other fundamental rights under the Constitutions, the right to personal privacy is not absolute and still subject to law and procedures. Even in Europe, the courts do not view privacy rights as absolute as it must be weighed against the means to protect the society at large such as serious crime investigation.

The government’s moves in installing more CCTV cameras and setting up of the new DNA databank demand a significant privacy protection law to be made available to the citizen. Proper safeguards in the like of Personal Data Protection Bill are badly needed in the absence of constitutional rights to privacy must be passed in the Parliament immediately to avoid any possible infringement. But most of all, I personally wish our lawmakers to consider inserting privacy rights to be part of the Constitution which somehow qualified and save in accordance with law.

p/s – this write is merely a personal opinion of the writer and not meant for academic or legal argument.

My supposedly peaceful saturday morning is interrupted by the NST Online news "PAS Muktamar: 'We can lead a Pakatan govt'"
(http://www.nst.com.my/Current_News/NST/Saturday/Frontpage/2575496/Article/index_html).

Interesting to note that PAS has the desire to lead the Pakatan Rakyat government if they win the PRU13. Why I said interesting is simply because all these while I was under the impression that PAS is merely playing a minor role behind PKR and DAP. That combination of three (3) political parties to form a marriage of convenience under the name of Pakatan Rakyat to have political controls over the Five (5) States then after the PRU12 remind me of a 'Sepak Takraw' team. The PKR plays the role of 'Killer', DAP as 'Tekong' and PAS as 'Feeder'. In other words, PAS is merely playing a secondary role in that sepak takraw team (my personal view).

Ironically, if PAS now declares openly their intention to be the Captain of the team or the man of that marriage, what then Anwar Ibrahim will be? what about the DAP paramount leader Lim Kit Siang? I guess I am not stupid enough to get myself ready to accept the fact that my Malaysia is led by Three (3) Prime Ministers and to my recollection, I have never come across (to my limited number of readings) that there was/is any government led by more than One (1) person. Please correct me if I'm wrong.

Personally speaking, the Pakatan Rakyat leaders must be fair to all people who support them by setting up a 'Shadow Cabinet' in the Parliament (like in the UK) so that if they win the PRU13 (which i greatly doubt), the forming of the next government will not be in a shoddy manner. This somehow will avoid any chaotic political landscape in the future. I don't vote Pakatan Rakyat as I am not convinced by their agendas and root. But if they win the next PRU13, I will have to accept the majority choice. However, it is the political stability and political certainty of the country that become the utmost consideration should that 'political tsunami' become reality.

My dear fellow Malaysians, are we ready for a drastic unclear change? can we now have a clear certainty of 'who is the man in the family'? so Pakatan Rakyat, as an ordinary Malaysian, please tell daddy who is the man??!!




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NST Online » Frontpage
2009/06/06
PAS Muktamar: 'We can lead a Pakatan govt'
Sheridan Mahavera, Suresh Ram, Sajahan Waheed, Eileen Ng, Joseph Sipalan and Ili Liyana Mokhtar
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SHAH ALAM: Pas has offered to lead the country if Pakatan Rakyat wins the next general election.
Party president Datuk Seri Abdul Hadi Awang said Pas would continue to be committed to defining and effecting changes based on an universal Islamic framework.

"Pas is prepared to offer itself to lead the changes and carry the burden of leadership in a multiracial society in Malaysia after the 13th general election," he said.

Opening of the 55th Pas Muktamar at the Malawati Stadium here, Hadi said over the years, the party had also broken down barriers with non-Muslims.

He said the votes received by the party in recent by-elections had also showed increasing support for Pas, adding that this had been possible with the pioneering effort by past leaders, such as through the establishment of the Chinese Consultative Committee and recently, the setting up of the Pas Supporters Club.
"As a result, Pas is able to understand better the needs and atmosphere of a multiracial and multi-religious country."

On Pas Supporters Club, Hadi said there was a need for the implementation of a specific orientation programme to provide a clear understanding of the struggle of Pas.

He also suggested that the club be institutionalised through amendments in the party's constitution.

Hadi said the party would aggressively spread its wings further in Sabah and Sarawak.

He also said the party's religious scholar wing, the Dewan Ulama, would continue to play a vital role in the party and there was a need for its duties to be enhanced.

This, Hadi said, could be done by attracting younger religious scholars into the wing as well as through involvement of veterans who no longer hold party positions.

Hadi said as young voters were important, it was important for Pas Youth to come up with a plan to sustain the support of the youth.

He also said the party's Dewan Muslimat (women's wing) had an important role to play in building bridges with the younger generation.

There is a saying ‘when you go to Rome, you must do what the Romans do’. Having been in this country for almost a year, so many unbelievable things happened besides being ‘back to school’ stuff. The best thing is that I am currently doing ‘thing’ that I’ve never imagined I will and can do ‘it’. Ironically, it has been almost 5 months since I started my new ‘dunno how to explain’ job. It was all started when my housemate Pae text me sms that he had booked one ‘job’ for me. I had informed him few days before that I was so bored and need a job for so that at least I have something to do.

I was a depth morning sleep when I received that sms. Without any second blink I replied ‘OK’ (while my brain was half working) without even figuring out the content of the sms. Soon as I woke up, then only I realized that it was a job thing. And yes, I really need to find a job since my course workload was too light during that 2nd semester. The big time gap is filled up by thinking of my wife, nata and kyra in Sabah.

During the interview, the supervisor explained to me the ’scope of works’ and the training I have to go thru. The worst part of the interview was when she told me about the uniform (work attire) i.e. the same typical black and white attire plus a neck tie and mini vast. Feels like a deja vu, I’ve been trying to avoid that ‘tahi cicak uniform’ thru all my ‘lawyering’ days. Funny but odd for my new job, I have to wear them on from monday to friday. On my very first day in such a ‘proper attire’, my house mates asked ‘pergi mana bang, pakai smart2 ni?’ and I just answered ‘pergi mencari sesuap nasi’…hhahahahahaaha.

Each of the steps to my new workplace seems to be meaningful as I was still playing the ‘to be or not to be’ game in my mind. Must I proceed or should I go to town and go watch movie instead. While trying to have an imaginative ‘toss of coin’ in my head, I have actually reached the place and registered my name in the employee log book. Hence, no other choice but to proceed.

Come the training part, the supervisor explained to me what and how to do the tasks. My first task of the day is vacuuming and cleaning all the desks and chairs in the office area within an hour from 5pm to 6pm. To be frank, I am not used to do this kind of works through all my life and I don’t even know how to handle the vacuum cleaner. I guess I should have gone to town and watch movie instead. After the vacuuming part, the supervisor asked me to get a bucket, mop, black garbage plastic and the cleaning spray. I was stunned and completely speechless when she told me that I need to clean all the eight (8) toilets on the 2nd and 3rd floors respectively within an hour or so. Sigh, I quietly asked myself in the most soothing way ‘’Muammar Julkarnain what are you doing??’’ as I begin to clean the first toilet.

Each of the toilets, I need to empty the bins, check the toilet bowls and flush them, spray and wipe the mirrors and all the head pipes, the tissue holders, soap holders and finally ‘mop lantai’. After the toilets, I have to vacuum the common places on the 2nd and 3rd floors as well as the 2 elevators (spray and wipe the mirrors and the steel part). I was under the impression that doing the vacuum and toilets were the toughest tasks to do but I was wrong. My final task of the day, reminds me of Pandekar Bujang Lapok script ‘woo...kerja saya memang merbahaya pakcik, sambung ekor harimau…’. I need carry a vacuum bag (mcm ghostbuster’s bag) on my shoulder, then carry it from the store to the 4th floor and finally, start vacuuming all the steps down until the basement floor. Then, Merdeka!!! (Now I know what is the meaning of MERDEKA!!).

Too heavy for me but somehow I enjoy it for no obvious reason. Every time I log out from workplace, I feel really relieve. I begin to love this job despite how odd it may sounds. There was one time when I told my wife about my aching back for wiping many tables that forced me to stretch my whole body to reach the corner point of the tables especially those behind the computer monitors. She then asked me to quit and find another lighter job. I simply replied ‘no, I want to stay as long as I think I can’. Forget about the tiring and body torturing part, what is important to me this odd job teaches me a lot about adapting life and surroundings.

Being a lawyer, sometimes I feel ‘classy’ since it is no doubt a prestige profession in the eyes of the public. Of course, I miss those moments whenever I do my cleaning job where I just simply sit down do some ’serious’ works and just ask my junior lawyers and clerks to assist. Easy job but need to crack my brain. In contrast, I am currently doing all the physical oriented works and minimal use of brain and most of all no one is helping me with the works. The interesting part is when I have to take instruction from my supervisor. The funniest part is when I started to feel nervous and uneasy whenever the supervisor is doing the checking on me. I can’t really explain how such feeling like but one thing for sure, I never imagine myself being in this kind of situation again... not the nervous part.

We may look things in this world differently and from my ‘new lens’, I now believe that every works and every workers are equally important no matter what. Being a cleaner may not be as classy as being a lawyer but this is a ‘noble’ job too. To me, it is like a minor part that complete the whole drama even though the audience may not even realize its existence. Most of the people may start from small to big things but what I am doing now is the opposite direction or in other words, a reversed perspective in toto.

I may have no more complain in life and I do treasure having this kind of experience and frankly speaking, I love this job no matter what. But above all those things, I will never ever allow my Nata, Kyra and Qatryna to do this kind of job in the future simply on the basis that ‘I love them so so so much’. Call me a hyprocrite, I love being a lawyer more anyway...definitely or maybe.

This entry was posted on Tuesday, July 8th, 2008 at 11:21 pm