OCTOBER 29 — Concerns have been raised over reports that police have begun conducting spot checks of students’ smartphones in schools to look for pornographic or “prohibited” material.
The move follows from the Cabinet and Home Ministry’s decision to step up patrols in schools as part of nationwide efforts to curb juvenile crime.
It is said that the directive allowing the police to check students’ smartphones in the absence of an ongoing investigation or suspected offence is unconstitutional as children, like all persons in Malaysia, have a right to legal protection under Article 5(1) of the Federal Constitution.
It is further said that under the Criminal Procedure Code, for a search to be conducted, there must be an ongoing investigation to begin with. In the absence of ongoing investigation, the police have no power to search an individual.
But, while the power to search must be regulated by law, it has been accepted that the power is an overriding power of the State for the protection of social security.
More than 70 years ago, the Indian Supreme Court in the case of Sharma & Ors v Satish Chandra in 1954 had even held that search per se could not be considered as unconstitutional:
“A search … is only a temporary interference with the right to hold the property searched …. [It] is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional.”
Fifteen years later, the great English judge Lord Denning in Ghani v Jones [1970] explained the principle underlying the power to search as follows:
“What is the [underlying] principle? We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime.”
So, the power to search under the law is about balancing the freedom of the individual and the interest of society at large.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
