Get to Know Your Civil Rights

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THROUGHOUT FEBRUARY 2020, Penang Monthly conducted a survey on Penangites’ awareness of their rights as Malaysian citizens. The survey centred around three main categories: public rights, employment rights and student rights. Answers were collected from 120 respondents across different genders, ages and areas of Penang, both on the island and the mainland.

We also interview former chief police officer Datuk T. Narenasagaran, a consortium of five lawyers and ex-student activist Adam Adli for their opinions on civil rights in Penang, and how Penangites can be made more aware of them.

Public Rights

Arrest

Many of us have watched the police recite “Miranda rights” in Hollywood movies. But how many Penangites know the rights secured for them in the Malaysian Federal Constitution? Here are some highlights from the survey:

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Former chief police officer Datuk T. Narenasagaran.

In response to the question “When being arrested by the police, which rights are you already aware that you have?”, 102 respondents (85%) are aware of the right to know why they are being remanded, while 63 respondents (52.5%) know they have a right to remain silent, other than giving mandatory personal particulars.

Respondents are also asked if they are aware of their rights after being detained; 70.8% (85 respondents) are informed of the right to contact one relative/friend, while 32.5% (39 respondents) know they have the right to be freed after 24 hours of detention, unless a Magistrate orders an extension.

In the event of body searches, only 25 respondents (25.2%) know that they can only be searched in the presence of a police officer ranked “Inspector” or above; while 83 respondents (69.1%) are aware that women can only be searched by a female police officer.

“The police are duty-bound by statute and the Constitution. Nobody can arrest you unless they have a reasonable cause,” says former chief police officer Datuk T. Narenasagaran. “It is mandatory for the police to tell you why you’re being arrested and put a hand on you when arresting. You will be told your grounds of arrest and the police can only detain somebody for a maximum of 24 hours.”

He adds that from the moment of arrest, all police activities will be documented in an investigation diary. “After 24 hours, if we’ve got no reason to detain you further, you will be free to go once the police have clarified and checked your alibi. If we still think there’s reason to detain you, we will take you to the Magistrate and seek permission to detain you for longer.”

As former head of training, Narenasagaran assures that each policeman has a comprehensive knowledge of the statutes they are duty-bound to follow. “All police personnel have knowledge of the law. They must all pass a law exam and many policemen are also legally trained – I have an LLB honours, a Master’s in Law and Sharia Law, as well as in forensic science. We are not lawyers in practice, but we do have academic qualifications and have practically applied the law, e.g. gone to court to give evidence.

"We lack social responsibility, but ignorance of the law is no excuse. We should endeavour to become a socially responsible culture.”

“But in just nine months of training, I cannot change 20 years of one’s upbringing – there may be some characters in the police force who are probably involved in corruption, abuse of drugs and power, but this is not a true reflection of the police force who are 130,000 strong and inculcated in the police culture of discipline.”

Phone searches

When queried about allowing phone searches by the police, the survey found that Penangites are conscious of their privacy rights; 19 respondents (17.5%) answered “Never”, referencing their right to privacy and the Personal Data Protection Act 2010 as reasons. The remaining respondents concede that phones could only be searched under specific circumstances, e.g. with a legitimate reason or at a legitimate search point area, with a search warrant or as part of a criminal case. No respondents answered “Always”, although some encourage police access to phones for investigations to run smoothly.

“The police are governed by the Personal Data Protection Act,” says Narenasagaran, “Your private life is your business so long as there is no reasonable cause to believe that the act you’ve been involved in is detrimental to the country. We cannot arbitrarily infringe on your privacy. Individual rights are very sacred and can only, in very limited situations, be infringed, such as if the police have reasonable cause or evidence to believe that this person is the perpetrator of an offence or he has some information on this offence.”

It is also discovered that the most popular way of transmitting information on civil rights is through peer-to-peer interaction, whether this is through private means or online social networking. However, this may not necessarily provide complete and accurate information.

“There are many avenues for people to find out what affects them. I strongly believe that the rights and responsibilities of a citizen, and the Federal Constitution should be taught as early as Primary One for citizens to be well-versed with their rights. We lack social responsibility, but ignorance of the law is no excuse. We should endeavour to become a socially responsible culture,” says Narenasagaran.

Employment Rights

While technology has encouraged flexible and remote working, employees still feel pressured to remain constantly connected, especially during the Covid-19 pandemic. This begs the question: when is the right time to disconnect?

Respondents are asked if they think employer-employee WhatsApp communications should be regulated within an employment contract, e.g. contactable hours, response times. Those in favour list the following as reasons: to safeguard employees’ work-life balance; to prevent employers from abusing working hours; to set a specific timeframe whereby the employees are expected to reply; to avoid miscommunication; and for a work contract to be tabled first [but] to be negotiated later.

Some respondents, however, denounce a contract as restrictive. One respondent argues that this “defeats the purpose of gaining an advantage in productivity when we are still behind in technology”. While another speculates that this “may reduce employee satisfaction since it hinders personal connection between colleagues”.

A few respondents recognise the importance of disconnecting, but feel that this does not need to be regulated in a contract. “Response time and contactable hours should just be part of the organisational culture,” says one respondent. Others empathise with the difficulty of regulating communications, acknowledging that “it is acceptable to contact employees if it is an urgent matter that cannot be left until the next working day.” Another respondent points out that “certain projects for a small period of time may need more work to be done outside working hours.”

All the same, the majority of respondents are in agreement that a contract would prevent workers from being exploited outside working hours. One respondent says that “without [a contract], it becomes a competition of who is most dedicated to the company [which] contributes to burnout. It solidifies the idea that employees are expendable”, while another adds that “the documentation of the contract helps to make it official, and for it to be used as a reference in case some unfortunate event were to arise between the employee and employer.”

A consortium of lawyers was consulted. Two cases surrounding employee dismissal due to WhatsApp messaging were discussed: Thilagavathy a/p Arunasalam v Maxis Mobile Services Sdn. Bhd, where an employee was dismissed after leaving a company WhatsApp group; and Megat Adzwan Shah v Malaysia Professional Accountancy Centre, where after “blue-ticking” his employer’s message, the employee failed to reply, leading to his removal from the company.

The consortium of lawyers. From left to right: Muhammad Zaidi bin Izman Murugan, Lee Jun Leong, Khor Wanxin, Melissa Chan (writer), June Loh Kah Hey and Moses Mathew George.

Despite the employees’ dismissals resulting from WhatsApp conduct, the lawyers conclude that the dismissal in the former case was due to previous “disobedience and insubordination” of the employee, rather than just leaving the WhatsApp group; and in the latter’s case, “other factors added up to his unsatisfactory attitude towards his work”, including “frequent lateness”.

So, is there a pressing urgency then to regulate WhatsApp communications?

“The use of private messaging as a means of communication or giving instructions should be specified in the employment contract/handbook,” the lawyers say. “Although employment contracts often state that an employee is expected to perform his duties beyond the usual working hours, it may be necessary to include contractual terms in relation to private messaging beyond working hours. Without such express provisions, failure to respond to private messages, by itself, should not be a ground for dismissal or disciplinary action.”

Respondents are also asked “When should employers be allowed to not hire potential employees or fire current ones based on their social media content?”. Of the responses, 88 (73.3%) agree that divulging confidential information on social media should be reason enough for dismissal, while 46 (38.3%) are of the opinion that employees/applicants should be fired/not hired for expressing any negative views towards the company or employees.

Fifty-two respondents (43.3%) say that this is more so the case if the content is discriminatory in nature; 25 (20.8%) allow that employers should only evaluate an employee on their public social media profiles, but not any content on private accounts; while three respondents (2.5%) agree that employers should not be able to fire/not hire workers based on their public or private social media accounts.

Based on the answers, it is clear that our social media presence, at least if public, is closely intertwined with our professional lives.

“If the employee’s social media content breaches the terms of employment, the employer has the right to terminate the employment,” say the lawyers. “For example, if the social media content violates the company’s confidentiality agreement or company policy; or if the content is threatening, harassing, bullying or defamatory; or could contribute to a hostile work environment by disparaging others based on race, gender, disability, religion and any status protected by law or company policy.

“Outside the company handbook, specific employment laws governing social media are not needed as yet. In terms of specifically regulating social media and electronic communications, existing principles are sufficient to apply to different electronic mediums, e.g. insubordination.”

Currently, the Employment Act 1955 protects workers in Malaysia, but the Act can be improved upon. Since a large number of employees now earn more, the lawyers propose increasing the wage limit of RM1,200. It is also recommended that the provisions relating to sexual harassment be revised under Sections 81A-81G or to introduce regulations under Section 81B(1) of the Act relating to the conduct of the investigation into sexual harassment complaints; as well as establishing an independent body/tribunal to be in charge of the investigation.

Other suggestions pertain to increasing the minimum days of maternity leave, introducing statutory paternity leave, extending the scope to all workers (migrant workers, self-employed, part-timer or independent contractors) and governing flexible working arrangements.

Above all, the lawyers stress for employees to know the importance of “both their rights not just under the Act, but also in their Employment Contract. Failing which, they could be undermined, oppressed, overworked or underpaid by their employers in the long run. Consider making it compulsory for employers to provide employees with an employment handbook containing the employment contract, relevant legislations governing employment in Malaysia and highlights of basic rights of employees.”

Student Rights

Penang Monthly also surveyed Penangites’ awareness of student rights in Malaysia. The survey questions were posed around their understanding of the Universities and University Colleges Act 1971. Only 15 respondents (12.5%) know of the Act and what it embodies, while 26 respondents (21.7%) are unaware.

The 12.5% describe the Act as “concerning the rights of students to participate in public discourses and be members of political organisations”; “the prohibition of involvement as a student in political parties and labour unions, no formation of student unions/limited political representation on campus”; and “what the university can or cannot do if anything happens within the campus ground or involves the staff/students”.

Respondents are also asked if an Act tailored specifically to protect student rights is necessary; a majority of 80.8% supports this. The reasons given are: to give students a say when changes are made to the rules and regulations of education; to protect students from harm, e.g. sexual harassment, cyber-bullying, mistaken use of power by lecturers toward students or vice-versa; and to protect students’ rights to the freedoms of speech and expression, and legally ascertain where these freedoms end.

Those who are against the idea argue that there are too many Acts passed in Malaysia, and that a review of the existing Acts is in order. A respondent observes that “within limits, I think tolerance is required on both sides, i.e. some leeway for students to express their views, but there must also be limits, especially when addressing topics that the wider populace still find difficult to address. It’s about how to manage this escalation of views in a constructive manner.”

... our social media presence, at least if public, is closely intertwined with our professional lives.

We asked the consortium of lawyers for their opinion of the Act. Some believe it to be outdated: “The Act curtails and infringes fundamental rights of students enshrined under the Federal Constitution. With that in mind, and except for provisions relating to the establishment of universities, the Act should be repealed entirely. Its repeal would allow students to join (without facing potential actions) political parties, participate actively in political affairs, to the extent of standing as a candidate in elections.”

One lawyer referenced Justice Hishamudin Yunus’ quote from Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors [2011] 9 CLJ 50: “Most university students can enter into contracts... can marry, become parents... can vote in general elections... Yet – and herein lies the irony – they are told that legally they cannot say anything that can be construed as supporting or opposing a political party… In my opinion, Section15(5)(a) of the UUCA impedes the healthy development of the critical mind and original thoughts of students... Universities should be the breeding ground of reformers and thinkers, and not institutions to produce students trained as robots.”

Some lawyers, however, disagree: “It’s more complex than just scraping the Act. In the past, students were exploited and radicalised by politicians. They still need an Act that protects them from being overly-influenced. However, if they’re lowering the voting age to 18, it seems strange that only those who pursue tertiary education are barred from joining political activities. Understandably, university students are more easily influenced in a campus environment, but this also affects academics and lecturers in their freedoms of research and teaching. Perhaps laws need to be reviewed, but not scraped entirely.”

Former student activist Adam Adli shares his thoughts on the matter. “Over the past few years, especially after the 2012 amendment to the Act, we have seen and experienced changes being made to improve students’ rights. Only last year, the Ministry of Education started to lay out the plan, especially in bringing back the banned Students’ Union. But it’s frustrating to see how little changes [to students’ welfare and debt] have been made by the authorities.

“The student movement was also heavily influenced by political parties during my time. I can at least see that there have been many others in the movement in recent years who've been able to move away from the influence. But in doing so, we have to be able to really identify the right direction for the movement. It's not about politics, but more on how it develops one as future leaders,” he reflects.

“I learned more about the world, governance and soft skills through my involvement in the movement. It was not easy, of course, and I paid a heavy price. Students should not be afraid of getting involved, speaking out, and organising themselves. They should read and write more. Students should not wait for the government to organise them; they are more than capable of organising themselves. I still believe that students should be allowed to not only get involved in politics, but also have a greater say in the affairs of universities, e.g. student welfare, the university’s direction and policies etc.”

It can be surmised that though there are still obvious knowledge gaps, of the 120 respondents, most are at least aware of a proportion of their public, employment and student rights. It is necessary that we know of our rights, but it is equally important that we understand them correctly.


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Cracking Down On Corruption

ON JUNE 1, 2020, the long-awaited tool for a crackdown on corruption, Section 17A of the amended Malaysian Anti-Corruption Commission (MACC) Act 2018, will be implemented. In KPMG’s “Malaysia on Fraud, Bribery and Corruption Survey 2013”, 90% believed that “corporate fraud that refers to bribery and corruption is the main problem for the business sector in Malaysia”.

Indeed, corruption seems to be rife, with nearly 800 Malaysian individuals arrested between 2014 and 2018 in corruption cases involving commercial organisations, and a total of 900 investigation papers opened by the MACC in the five-year period.1

Section 17A will prosecute public and private organisations if any associated person gives a bribe in order to receive or retain business, or to gain advantage in business dealings. The term “associated person” includes directors, partners and employees, and even extends to third parties performing services on behalf of the organisation. Senior personnel, such as directors, controllers, officers, partners or any person holding office at the time, will be held personally liable for the offence.

The offence carries a hefty penalty of not less than 10 times the sum of gratification or RM1mil, whichever is higher, or imprisonment not exceeding 20 years, or both. Malaysia is among the first nations in Asia to have such a law in place. The move to enforce Section 17A will align with international requirements under Article 26 of the United Nations Convention against Corruption. As Section 17A is a strict liability offence, directors and management will automatically be held liable regardless of whether they were personally at fault, placing a duty on them to prevent corruption throughout the supply chain. The MACC chief commissioner Datuk Seri Azam Baki confirms that “[Section 17A] requires, as a precautionary measure, the commercial organisation to create policies and efforts to prevent corruption in the organisation.”

In an interview with The Edge, EY Partner and head of Malaysia forensics and integrity services, Joyce Lim emphasised that “directors can no longer fall back on the defence that the corruption was committed without their consent or connivance. Now they would need to prove that due diligence had been exercised to prevent the commission of the offence, having regard to the nature of the board member’s function.”

She advises organisations to have “adequate governance, culture, controls, procedures and monitoring processes in place. Start with a practical and workable compliant framework. Companies should undertake a corruption risk assessment first, before thinking about the next step.” Through maintaining consistent communication with stakeholders about tackling corruption and embedding controls within the company’s daily operations, Lim believes companies can reshape an anti-bribery culture and sustain an anti-corruption framework.

“A third-party framework and due diligence are also key to ensuring that the company is dealing with trustworthy suppliers and business partners,” she says. A good compliance programme will be more time-, cost-, and risk-efficient in the long-run. By investing in due diligence, companies can gather higher quality information on pricing and services, and by sharing this information across compliance and risk processes, they can mitigate reputational risks, and build stronger relationships with suppliers.

Nevertheless, some argue that Section 17A may have an effect on competitiveness. Section 17A will hold the parent company liable for any corruption involving its foreign subsidiaries. Malaysian parent companies would undergo stringent due diligence and compliance policies throughout the supply chain, which may burden subsidiaries with costs that its competitors will not experience, especially in jurisdictions without such anti-corruption laws in place. In addition, SMEs will suffer the burden of the additional administration and due diligence costs.

Organisations can raise a defence if they can show that they have “adequate procedures” in place and prove they did not agree to take part in the act. These adequate procedures include anti-bribery procedures, a framework for antibribery and anti-corruption compliance and governance, a reporting framework and a monitoring programme.

Melissa Chan is a lawyer-in-training in the UK with a passion for musicals, stories and learning about people from all walks of life. She enjoys speaking to a diverse range of fellow Penangites, analysing their different perspectives and sharing their voices with the community.



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