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Legal Mythbusters: Can the PDRM check your phone for political messages at a roadblock?

over 6 years ago UiHua





This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.



The myth:

Police can check your phone at a roadblock (without a warrant) for political or religious messages.

The background:

A voice message has been circulating on Whatsapp and Facebook from a man named Rajan Nair.

In the minute-long voice message, Rajan says he was driving home from Gurun, Kedah, when he was stopped at a roadblock. A policeman checked his driver's license and asked for his phone - proceeding to check his Whatsapp, voice, and text messages. The officer then asked him if he was active in politics, and when he replied "no," he was given the phone back and allowed to leave.

"When I got home, I called a policeman friend and he said yes, nowadays they wlll check our phone and if there is any text or message regarding politics or religious, they will [confiscate] our phone and charge us in court." - "Rajan Nair", quoted from forwarded voice message.

Is this true?

Here's why:

While there are no specific procedures or laws pertaining to the searching of someone's phone (or any electronic device for that matter), the general rule is that the police need reasonable grounds in order to do so. For example, if you were caught with drugs in your car during a roadblock, the police may then be justified to look through your chats for information on a possible dealer or supplier.

[Read more: Can the PDRM legally check your car at a roadblock?]

Where the law is concerned, a warrant is usually required for any form of search. Specifically for electronic devices, the Communication and Multimedia Act 1998 (CMA) requires there to be a warrant (Section 247) in order to confiscate and check your phone. The exception to this is if an officer ranked Inspector or above has reason to believe that waiting for a warrant would compromise the evidence/data (Section 248).

Similarly, Section 116(A) of the Criminal Procedure Code also allows the confiscation and search of an electronic device if an officer ranked Inspector or above has reason to believe that you might be involved in organized crime or security offences (such as terrorism).

[Read more: Can the PDRM enter your house without a warrant?]

But when it comes to posts regarding politics or religion, it would be hard for the police to establish any reasonable grounds unless you're driving around with a giant banner with an offensive political or religious message. Not just that, it can be argued that the act of checking your phone for these messages would infringe on your constitutional rights as a Malaysian citizen to freely express yourself and to hold political and religious beliefs as stated in the Federal Constitution.

But the simplest answer perhaps come from the police themselves where, in regards to a similar "warning" message in 2015 about the police checking phones for messages related to 1MDB, said:

“There is absolutely no truth in it. We have better things to do than check mobile phones..." - Datuk Seri Mortadza Nazarene, Federal Commercial Crimes Investigation Department (CCID) director, as quoted by The Star.

However, what IS true is that you may get in trouble with the law - for example, under Section 233 of the CMA - for spreading false rumors... including this one!

Note: This answer is based on the legal perspective rather than individual cases. If you come across any rumors or have any questions about how the law works, let us know on our Facebook page or click here to send an email.

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