THE NUMBER OF closed-circuit television (CCTV) units installed by local authorities for public area surveillance has, in recent times, increased drastically. In Penang alone, more than 1,200 CCTV cameras have been installed for the purpose of public safety and traffic enforcement. Additionally, the City Council of Penang Island (MBPP) integrated facial recognition technology into its CCTV surveillance system. Although these may be effective in preventing crime and aiding police investigations, the main concern is whether they will quickly lead us down the path towards becoming a police state with pervasive mass surveillance.

First of all, does such mass surveillance breach our right to privacy? Article 12 of the Universal Declaration of Human Rights (UDHR) provides that all individuals have a right to privacy, and that they have legal protection against breaches to that right. Unfortunately, UDHR is not a legally binding treaty, especially when Malaysia has not formally ratified it. Nevertheless, in Malaysia, insofar as a matter is not inconsistent with the Federal Constitution (FC), regard is given to the UDHR. Moreover, there is a legal argument that these international human rights laws are nevertheless applicable in Malaysia.

Article 5 (1) of the FC states that no one is to be deprived of life and personal liberty in accordance with the law. The right to privacy in Malaysia is included in the liberal interpretation of “personal liberties”, which can be perceived through leading court judgements. The Malaysian Federal Court has acknowledged the broad position on liberty in the sense that the right to privacy is protected under the FC. As in the case of India, the Constitution safeguards rights and freedoms, ensuring personal privacy and “liberty against government”, except where justified. The right to privacy in Malaysia is, however, not an absolute right and can be validly restricted.

Malaysian courts have also recognised the need to balance security on one hand, and the right to privacy on the other. A test of reasonableness is required to determine if such surveillance is justified.

A reasonable example of such surveillance is continuous surveillance in public areas for the sole purpose of law enforcement or for increased security in semi-private settings, such as shopping malls. Generally, the right to privacy can be superseded by reasons of national security.

The purpose for mass surveillance is in preserving national security and in addressing security-related issues, such as crime. However, the potential for government abuse of surveillance tools must also be examined.

According to the Department of Statistics Malaysia (DoSM), the crime rate in Malaysia from 2018 to 2022 has been showing a declining trend, notably in violent and property crimes. The overall crime index and commercial crimes showed a decline of 4.1% and 3.0% respectively in 2022, although specific areas like cybercrimes saw increases.

Although the reduction in crime rates cannot be attributed solely to the increase in CCTV surveillance, there has been an obvious correlation between the two. Nonetheless, by comparing the number of CCTV cameras per 1,000 people found in major cities, KL merely has 0.58 CCTV units per 1,000 people, which is a significantly lower amount compared to places like Moscow, London, and major cities in China like Shanghai, Shenzhen and Beijing, and in India like Delhi and Chennai. This number is not yet concerning, and public opinion generally supports surveillance in public areas.

There is, nevertheless, worry that such powers conferred upon enforcement authorities may open up avenues for abuse. For instance, prosecutors have the authority to access and intercept communication monitoring, which include CCTV footage for security and crime prevention purposes. Such broad discretionary powers granted to the prosecutors, if left with insufficient oversight, can lead to privacy infringements. Enforcement authorities can easily exploit reasons such as “preserving national security” or any uncertainty related to security without being held accountable.

Currently, the most suitable independent body that possesses a check-and-balance mechanism is the judiciary. Courts are the ones that can effectively review whether enforcement agencies’ actions, when using these surveillance systems, interfere with national security or not. Judiciary independence is essential to ensure that authorities do not act beyond their powers, and that our fundamental rights and liberty are not violated.

An independent supervisory body is another alternative. This can oversee and scrutinise surveillance by the authorities. The system that we can adopt is the one that the UK uses. They have three independent supervisory bodies: the Interception of Communications Commissioner, the Office of Surveillance Commissioners (OSC) and the Intelligence Services Commissioner. These independent bodies are responsible for monitoring compliance with legislations, supporting systemic changes, reporting surveillance activities to the legislature and the public, and enforcing sanctions to prevent abuse.

While not explicitly expressed in our Constitution, privacy is a fundamental liberty. The Constitution is a living document, and it must adapt to the rapid rise of advanced surveillance systems.