Why police phone checks in Malaysian schools may be unconstitutional

Lawyers For Liberty (LFL) refers to news reports stating that police have begun conducting spot checks at schools, including checking students’ mobile phones to check for pornographic or ‘prohibited’ material.

This move follows from the cabinet and the Ministry of Home Affairs’ decision to increase police presence in schools.

A carte blanche directive to the police which allows them to check any person’s phone in the absence of an ongoing investigation or suspected offence is dangerous, illegal and unconstitutional. It is a slippery slope into authoritarianism.

It is highly alarming that the cabinet and ministry have issued this directive, which essentially substitutes the usual school administrative methods with a police regime.

That this directive is directed only towards schoolchildren does not make it acceptable or legal. Children, like all others in Malaysia, have a right to legal protection from oppressive policing under Article 5(1) of the Federal Constitution. This cannot be restricted unless allowed so by valid law.

Police officers checking phones of school children as a “preventative measure” runs contrary to the Criminal Procedure Code.

For a search to be conducted, there must be an ongoing investigation to begin with, the absence of which means that the police have no power to search an individual, whether child or adult. In other words, the police cannot look through phones for ‘random spot checks’. That would be illegal.

The directive by the cabinet and the ministry is a violation of Article 5(1) of the Federal Constitution and the safeguards under the Criminal Procedure Code against arbitrary police searches.

The logic behind this protection under the Constitution is clear. It is to avoid abuse of power, preventing authorities from simply conducting any search without a reasonable basis.

Such uninhibited power can render enforcement authorities as a tool of intimidation by the state. It would lead to a serious erosion of civil liberties, placing members of the public, including children, at the mercy of the authorities and the government.

That is why the Federal Constitution provides for due process, which cannot be denied even under the guise of curbing juvenile crime.

Minister Saifuddin Nasution Ismail is well aware of this as he himself stated in January that the police cannot randomly check people’s mobile phones. Why then would his ministry issue or endorse this directive?

LFL also asks the government to explain why such an extreme and illegal directive was issued. This hasty move shows a lack of proper deliberation from the aspects of legality, practicality and effectiveness. Do they intend to routinely deploy police at every school in Malaysia to conduct phone checks?

What of spontaneous acts of violence? Will the police be stationed in every classroom at all hours to prevent such occurrences in schools? What if the violence is conducted outside school grounds?

It is clear that little thought has gone into actually addressing the root cause of the recent incidents of violence against girls in the school environment.

The government has instead resorted to simplistic security theatre and violated the Federal Constitution and the law in the process. It seems to only care about the appearance of doing something effective.

A more holistic plan of action must be taken that includes educating young children on consent, respecting rights and dismantling the misogynistic narratives and structures that incite violence against women and girls.

Zaid Malek is the director of Lawyers For Liberty.

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