By: Sonny Zulhuda
Electronic tagging is a form of surveillance which uses an electronic device (a tag) fitted to the person. It is commonly used as a form of electronically monitored punishment for people who have been sentenced to electronic monitoring by a court, or required to wear a tag upon release from prison. The use of electronic monitoring devices in Malaysia has been first introduced by the Security Offences (Special Measures) Act 2012 (SOSMA) (Act 747). This article sourced few online reading materials relating to the use of electronic monitoring devices vis a vis the SOSMA. Therefore the similar concerns under the new amendment to the Criminal Procedure Code (CPC) 2012 are beyond the ambit of this survey.
In December 2015, Bernama reported that more than 200 people detained under the Prevention of Crime Act (POCA) have been strapped with an electronic monitoring device (EMD), quoting the Federal CID director, Datuk Seri Mohmad Salleh as saying. Salleh added that this effort was taken to monitor the movements of those people (apparently upon release – added), as well as to test the effectiveness of the device. Based on the similar report by Datuk Nur Jazlan Mohamed, the Home Deputy Minister, those who were detained under POCA include mainly those involved in gangsterism, violent crimes, property crimes as well as drug-related crimes. The report can be read here.
A similar provision on the use of EMD is also found in the Security Offences (Special Measures) Act 2012 (SOSMA). In section 7(1), the SOSMA provides for special procedures relating to the electronic monitoring device. It prescribes that, upon application by the Public Prosecutor under section 4 (which provides for the arrest and detention of a person believed to be involved in security offences), the Court shall order the person to be attached with an electronic monitoring device for a period as the Court may determine but which shall not exceed the remainder of the period of detention allowed under subsection 4(5) for purposes of investigation. Section 4(5) of SOSMA grants the maximum of extension to 28 days after the initial 24 hours of detention for the purpose of investigation.
However, it has not been further clarified how it will be attached to the suspected criminals’ body and what physical consequences could be faced by the suspected criminal while putting on this device. It was found that in some countries, a microchip can be inserted into the suspected offender’s body for the purpose of monitoring his/ her movements. In that case, any unexpected health side-effect is likely to take place. This will certainly raise a concern over health hazard and risks related to the electronic monitoring devices.
Under s. 7 and schedule II (form of electronic monitoring device) of the SOSMA 2012, the investigating officers are given unlimited power to track, monitor and retain the suspected criminals’ movement. An uncontrolled power could lead the officers to abuse. There should be a clear guideline on how these will be monitored so that the purpose of putting this electronic device could be achieved without violating the privacy right.
This is why prior to the enactment of SOSMA some quarters in the society raised their concern and highlighted those ethical issues to be considered. In the “Malaysian Bar’s Memorandum on the Security Offences (Special Measures) Bill 2012, Amendments to the Penal Code, Amendments to the Evidence Act 1950, and Amendments to the Criminal Procedure Code”, the national lawyers’ body highlighted that the use of the EMD raises a number of ethical, legal and practical issues.
Firstly, the Malaysian Bar contended that EMD is an invasive technology which will place a restriction upon a person’s liberties as it is able to track the person’s every movement once it is switched on. They quoted a study that some of those who have worn it have indicated that being tagged with EMD is “psychologically wearing and more onerous in terms of self-discipline than the world of prison”. Secondly, complex questions as to the scope and practical application also arise if EMD is implemented, such as how long can authorities track the offender’s movement outside of curfew hours, and how the information about the offender’s movements should be used? If EMD is going to be implemented, the Bar urges that this should be done through judicial determination. Thus, it was suggested by the Malaysian Bar that the application under section 7(1) of the Bill (as it then was) by the Public Prosecutor
should not be made ex parte. They maintained that the individual’s right to counsel should be accorded, and such an application should be heard before a judge, where the suspect should be given the opportunity to object or resist such an application, either by himself or through legal representation.”
Aingkaran Kugathasan (2013) wrote his observation about the SOSMA in his article titled: “War on terrorism versus civil liberties of individuals: An analysis of the Malaysian Security Offences (Special Measures) Act 2012.” On the particular provision on electronic monitoring devices, he criticised why the Act does not provide any interpretation for the term ‘electronic device.’ However, he added that the new section 390C of the Criminal Procedure Code (CPC) specifies types of devices that may be used for the purpose of electronic monitoring. The writer highlighted that on this issue, the Malaysian Human Rights Commission views there is a need to require court order before a monitoring device is attached on any “suspect”. It is also worth noting that the 28-days period of detention is in line with the Commission’s recommendation as contained in the report Review of the Internal Security Act 1960. However, giving such power in the hands of police authority may jeopardize the purpose of the legislation. The author further highlighted that the Commission recommends that the extension of the period of detention, beyond the initial period of 24-hours, be done through the judiciary to ensure that rights of the suspect or the detainee are protected.
On top of that, there are views who either support or criticise the SOSMA 2012. Simon Wood from Kolej Damansara Utama (KDU) had provided a compact insight including the critical as well as supportive views in relation the new Act, with some comparison with like legislations such as the (now-defunct) Internal Security Act, Sedition Act and the Prevention of Crimes Act (POCA). In his paper entitled: “The operation of the Security Offences (Special Measures) Act 2012 and a comparison with the old Internal Security Act 1948 – Heralding a new democratic era, or old wine in a new bottle?” (published in the International Journal of Technical Research and Applications, Special Issue 10 (Nov-Dec 2014), pp. 78-83), Simon concluded that, while it is inappropriate to label the SOSMA as “an old ISA in a new form”, it is also not entirely accurate to say that Malaysia is heralding a new era of a golden democratic age.” Indeed, a conclusion that makes you want to read the article. This paper can be read here.
To sum up, we know that SOSMA should be seen in the context of today’s issues. We have learned that, among the objectives of the enactment of a law is to eliminate the mischief that emerges in the background. What is that mischief this SOSMA is seeking to eliminate? Obviously, those recent threats to security and public order would be the target of this SOSMA. But on how the details are to be worked out, this solicits further study and critical observations.
More stories from the news:
“Use of Electronic Monitoring Device to be outsourced” The Sun (28/4/2015)
“Bekas banduan dipakaikan EMD” Utusan Online (29/3/2015)
“SOSMA good, but check and balance also needed, says former A.G.” The Rakyat Post (3/11/2015)
Note: This note/blog is written as part of my research project under the Fundamental Research Grant Scheme (FRGS 13-045-0286) commissioned by the Ministry of Higher Education, Malaysia.