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.