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Public against data unveiling (PADU) paused

The one recurring theme that envelopes PADU is whether the government undertook careful planning by conducting due diligence efforts as to the intent, content, extent, scope, scale, effect and impact of its operations. The answer to that is very obvious in that PADU was just thrust into our already cluttered culture.

Noblesse oblige may have inspired and impelled the government to dish out subsidies like the money belongs to the WIP (wealthy, influential, powerful) while the vulnerability of PADU was overlooked. That’s typical Malaysian pathos. Rush in first. Repair later. Distort reality.

Which ever way you cut it, slice it, dice it, PADU invades privacy. Under Section 509 of the Penal Code, it is a criminal offence to “intrude upon the privacy of a person”. But this has been interpreted to mean insulting the modesty of a person. Invasion of privacy is an actionable wrong, a tort for which the law must afford relief and remedies.

The law with its subtle interpretations and hidden meanings add to the problems of ordinary citizens whose main priority is to put food on the table. Our privacy laws, in its infancy now, need growth and development that will help the economy, and not be counter-productive for which more laws will be necessary.

Liberty, as understood in jurisprudence, includes privacy, secrecy and confidentiality. They are four totally different concepts in law. PADU with all its premises, parameters, promises and pledges is on thin ice. To avoid the perils of thin ice, one has to skate fast. PADU cannot afford the pace and the space. Peoples’ lives are at stake.

Article 5(1) Federal Constitution provides that “no person shall be deprived of his life or personal liberty save in accordance with the law”. At first blush, this could also mean that a badly written law could be cloaked with constitutional authority to deprive someone of his or her personal liberty.

The PDPA 2010 satisfies the “save in accordance with the law” requirement. But just because it is a law – a piece of legislation – it does not make it constitutionally immune if our jurisprudence believes in the supremacy of the Federal Constitution and not Parliament. Legislation takes a back seat when a constitutional right is harassed or threatened.

Why the Reid Commission preferred not to cast it into concrete with phraseology like ‘no person shall be deprived of his life or personal liberty save in accordance with the principles and tenets of justice’ is beyond me. After all, England never had a written constitution, and we asked them to write one for us!

The law is subject to amendment, modification and repeal, not justice with all its ramifications. It continues to grow in stature as a sturdy firmament in jurisprudence based on evolving social facts. PADU may have its shoots in law, but its roots are suspect.

To start this analysis, privacy has not been defined in Malaysian law. “Misuse of private information” may be a good place to start to identify hackers, busybodies and others who make it their business to probe without a government-issued license such as those issued to private investigators and to law enforcement.

A “reasonable expectation of privacy” is usually juxtaposed with “misuse of private information”. English courts have gone the extra mile to find pith and substance to the issue of privacy. And Malaysian courts have not blinked or hesitated. The scourge of stare decisis continues to keep some judges agile, awake, assertive or aghast.

Do the PADU managers understand the difference between ‘private’ and ‘confidential’? This became the pivotal issue in Vidal-Hall v Google Inc. [2015] EWCA Civ 311, where the court ruled ‘that misuse of private information should now be recognised as an actionable tort’. Again, public law and private law have different dimensions, directions and demands.

Malaysian courts are trying to keep pace, perhaps, with social facts associated with privacy. In Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333, the Federal Court held that Article 5(1) Federal Constitution’s “liberty of the person” encompasses the right to privacy although the case had nothing to do with privacy, per se. It was merely an illustration.

In Beatrice a/p At Fernandez v Sistem Penerbangan Malaysia & Ors, the Federal Court made it clear that constitutional law, as a branch of public law, deals with contravention of individual rights by the legislature or the executive or its agencies. Therefore, a private individual will not be able to find relief or remedies when his or her privacy rights are violated by another private individual.

Sivarasa and Beatrice stand for the proposition that Article 5(1) operating as a public law does offer remedies only when the government infringes your right to privacy. This is where PADU will feel great discomfort as it is brazenly and blatantly violating privacy when it collects data from its citizens for seemingly questionable purposes and weak reasons.

Malaysian judges, caught in the quagmire of adherence to the principle of stare decisis went through many cases involving privacy that parties often confused with negligence. None of the many cases including Maslinda Ishak and Dr. Bernadine invigorated our judges to invoke Article 162(6) Federal Constitution.

This seldom invoked Article grants judges constitutional authority and power to modify any post-Merdeka law as may be necessary to bring it into accord with the provisions of the Federal Constitution. “Modification” according to Article 162(7) includes amendment, adaptation and repeal.

Not to digress, but Article 162(6) etched a niche in our jurisprudence in Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLRA 233, Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 1 MLRA 819, Lai Hen Beng v PP [2024] 2 MLRA 21, Datuk Seri S Samy Vellu v. S Nadarajah [2000] 8 CLJ, despite judicial haggling of whether this Article accepted judicial legislation or preferred judicial amendment.

So, PADU (existing law) is walking into a mousetrap under Article 162(6) and (7) if the government cares to examine its legal and constitutional ramifications. Malaysia is not a signatory to many international agreements and declarations where fundamental human rights are a priority and a principal cause of action for violations whether intended or otherwise.

That could be the reason PDPA and PADU are coasting along enjoying the …


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