You are on page 1of 21

Page 1

Page 2

Malayan Law Journal Articles/2007/Volume 6/'leave Me Alone!': Syariah V Civil Law [2007] 6 MLJ xcix Malayan Law Journal Articles 2007

'leave Me Alone!': Syariah V Civil Law

Zainal Amin Ayub Zuryati Mohamed Yusoff Faculty of Public Management and Law Universiti Utara Malaysia Introduction The term 'privacy' is not rooted in the heart of Islamic doctrine. The term occurs neither in the AlQuran nor in the traditions conveyed from the Holy Prophet and the imams. Islamic jurisprudence does not recognize the term either1. It is however does not mean that Islam does not recognize the right to privacy. As discussion on the matter will continue, we will find that Islam highly respect the right of privacy of human beings. On the other hand, under civil law, the definitions of privacy vary widely according to context and environment and in many countries; the concept has been fused with data protection, which interprets privacy in terms of management of personal information. Protection of privacy is basically the limit at how far society can intrude into a person's affairs. In the 1890s, United States Supreme Court Justice Louis Brandeis2 articulated a concept of privacy that urged that it was the individual's 'right to be left alone.' Brandeis argued that privacy was the most cherished of freedoms in a democracy, and he was concerned that it should be reflected in the Constitution. According to Llyod3, the classic definition of concept of privacy is that, in simplest phrase, it consists of the 'right to be let alone' where this definition is generally attributed to the United States justice, Judge Cooley. Meanwhile, Edward Bloustein 4 opined that privacy is an 6 MLJ xcix at c interest of the human personality. It protects the inviolate personality, the individual's independence, dignity and integrity. Robert Ellis Smith 5 defined privacy as 'the desire by each of us for physical space where we can be free of interruption, intrusion, embarrassment, or accountability and the attempt to control the time and manner of disclosures of personal information about ourselves.' Privacy is the expectation that confidential personal information disclosed in a private place will not be disclosed to third parties, when the disclosure would cause either embarrassment or emotional distress to a person of reasonable sensitivities6. The right of privacy is restricted to individuals who are in a place that a person would reasonably expect to be private for example in home, hotel room, telephone booth etc. There is no protection for information that either is a matter of public record or the victim voluntarily disclosed in a public place. People should be protected by privacy when they believe that the conversation is private and cannot be heard by others who are acting in a lawful manner7. Privacy under Syariah Law

Page 3 As for Islam, the Islamic law values and guarantees the fundamental rights of every individual, Muslim or non-Muslim. This is clearly envisaged in various verses of the Al-Quran and the sayings of the Holy Prophet saw (Hadith). Dr Mohamed Berween in his article 8 outlined fundamental principles which are recognized by Syariah. They are:

1i) 1ii)

The Right to Life


The Right to Live in Dignity


1iii) The Right to Justice


1iv) The Right to Equal Protection of the Law


1 1v)
The Right of Choice

6 MLJ xcix at ci

1vi) The Right of Free Expression 1vii) The Right to Privacy 1viii) The Right of Property

1ix) The Right to Basic Necessities of Life



, and The Right to Revolt


Islam considers the right to privacy as one of the most precious freedoms. Islam has recognized the right to privacy since the revelation of Al-Quran to the Holy Prophet Muhammad s.a.w. as enunciated in the verses of Al-Quran where a man should ask permission before entering another person's house17. For instance, the Al-Quran made it very clean that man's privacy is his and no one should intervene in it without his permission. Islam protects the privacy of one's home from invasion neither by the government nor by anyone else unless they have sufficient evidence of a commission of a crime. In other words, Islam has long recognized that 'a house is a man's castle'. There are few verses concerning privacy as mentioned in the Al-Quran:
O you who believe, do not enter houses other than your own, until you have asked permission and saluted those in them: that is best for you, in order that you may heed what is seemly. If you find no one in the house enter not until permission is given to you; if you are asked to go back, go back: that makes for greeter purity for yourselves: and Allah knows well all that you do18.

And whenever we have permission to enter a house, it is essential to enter the house from the proper door. The Al-Quran states this way: 'Enter houses through proper doors 19.'
Do not spy on one another, nor let any of you backbite others. Would one of you like to eat his dead brother's flesh? You would loathe it! Heed Allah, for Allah is Relenting, Merciful 20. 6 MLJ xcix at cii You who believe, have those whom your right hands control [that is: servants, wards and captives] and those of you who have not reached puberty, ask permission from you [to come into your presence] on

Page 4
three occasions; before the daybreak prayer; when you take your clothes of at noon [for a siesta]; and after the late evening prayer. You have three times for privacy21.

According to Islam, therefore, privacy is the most comprehensive of rights and the right most valued by Islam. All personal matters are protected and considered sacred and they should not be violated unless there is a compelling reason warrants violation of personal privacy. If there is a compelling reason warrants violation of personal privacy, then government has the right to intervene. However, no person shall be deprived of his privacy without due process of the law. In other words, the right to privacy, in Islam, is not absolute. Disclosure can be required of persons and organizations suspected of engaging in unlawful activities 22. As stated by Berween,23 one of the basic human rights from Islamic perspective is the right to privacy, which, inter alia, are the following:

2i) 2ii) 2iii)

the right for every individual to be left alone in his or her private live; the right of protection of persons and places where they live to be free from any surveillance, intrusion; and, from unlawful searches and seizures; the right not to have individual's private affairs and personal data made public without his or her permission. This also means that government has no business regulating the intimate behavior of individuals and the right to keep all personal information confidential.

In principle, Islam has given a freedom to human being to choose whatever he or she wants and how to live their life. Apart from having the right to travel, relocate, choose their jobs and so forth. In addition, it is un-Islamic to compel others against their will to believe in Islam. Allah clearly stated this in the Al-Quran which means: 'Let there be no compulsion in religion. Truth stands out clear from error. Whoever 6 MLJ xcix at ciii rejects evil and believes in Allah hath grasped the most trustworthy handhold, that never breaks.'24. According to Abdullah,25 the verse clearly shows that compulsion is incompatible with religion. On the strength of the prohibition of coercion (ikrah) by Allah in this verse, Muhammad Asad26 stated that in anything that pertains to faith or religion, all Islamic jurists, without any exception, hold that forcible conversion is under all circumstances null and void, and that any attempt at coercing a non-believer to accept the faith of Islam is a grievous sin, a verdict which disposes the fallacy that Islam places before the un-believers the alternative of 'conversion of the sword'. As such, Islam promulgates that coercion must be avoided with regard to religious beliefs. In other words, every citizen has the right to practice and to live his life in his own way as what he believes. On the other hand, we must understand that this is not absolute. One must recognizes that freedom to believe is not the same as freedom to act. For instance, someone may believe in a religion that demands human sacrifice, but the government has the right to make such sacrifices a crime. In other way, it is obvious that religious freedom cannot be invoked as a defence for violating laws which injure the community welfare. Furthermore, as for a Muslim, as he or she has surrendered themselves to the religion of Islam, they are governed by precepts of Islam. They are at no liberty to adopt only the rules which they prefer to fulfill their own pleasures. Allah has commanded which means ' O ye who believe! Enter into Islam wholeheartedly; and follow not the footsteps of the evil one; for he is to you an avowed enemy...27 and He further states which means '...then is it only a part of the Book that ye believe in, and do ye reject the rest?'28 Thus, the obedience and submission to the revealed law of Islam must be in its totality. Allah however has given choices of two paths for mankind to choose as stated in Al-Quran which mean '... And shown him the two highways 29'. Abdullah30 commented that the two highways of life are:

Page 5 6 MLJ xcix at civ

3i) 3ii)

the steep and difficult path of virtue; and the easy path of vice and the rejection of Allah.

Besides, Allah has given also to mankind the judgment by which they can choose their way; and He has sent to man Messenger and Books (Al-Quran), with revelation, to show the right and difficult path. Besides, Islam guaranteed right to privacy to every mankind and no one can interfere with his privacy without his permission.31 Based on these verses from surah An-Nur, Islam has acknowledged that dwelling houses has its own dignity that cannot be interfered unlawfully unless and until permission is sought and given by the owner of the house. Even if the house is empty, that does not entitle any person to enter it except with the owner's permission. The fact that there is no reply as well makes no indication that the owner is giving his permission. If after waiting for a while or after knocking and giving salutation for three times, he should withdraw and go back. Muhammad Asad32 opined that the expression hatta tasta'nisu, rendered as 'unless you have obtained permission,' may be translated more precisely as 'until you have made sure that your presence is welcome.' The word isti'nas here means seeking to establish comfort, that is, making sure that the potential visit by the prospective guest would be received in a positive manner by the host and that the host is prepared for it at its proposed time. Furthermore, the Holy Prophet saw has stipulated that a person who attacks an intruder to prevent that intruder from spying on his or her private home is not liable for punishment for the attack. Ibnu Qayyim al-Jawziyyah said that in Al-Sahih from the hadith narrated by Abu Hurairah that the Prophet s.a.w said 'he who looked at the inside of person's house without his permission and his eyes were gouged, has no right to blood money nor punishment over them 33'. However, according to Sayyid Qutb, the rule does not apply to houses used for other purposes such as hotels or inns34. Moreover, even if the permission to enter is given, it is essential to enter the 6 MLJ xcix at cv house from the proper door. Allah states in Al-Quran that ' Enter houses through proper doors.' 35. Islam also recognize the right to information privacy or personal data, i.e. any information of individual should be discussed or revealed in public whether or not the news is true, if the consent of the person concerned is not obtained. In other words, any matter is to be protected against any disclosure without consent of the individual. Allah swt said:
O ye who believe! Avoid suspicion as much (as possible): for suspicion is some cases is a sin: and spy not on each other, nor speak ill of each other behind their backs. Would any of you like to eat the flesh of his dead brother? Nay, ye would abhor it But fear God: for God is Oft Returning, Most Merciful 36.

Mustafa al-Maraghiy37 defined 'al-tajassus' in the above verse as spying in order to discover the flaws and defects of others as well as to uncover the secret and the covert act of individuals. It was narrated by Abu Hurairah that the Messenger of Allah saw said 'Avoid suspicion, for indeed suspicion is the worst of false speech38.' Ibn Hajar al-Asqalani mentioned that zann or baseless suspicion has been construed as calumny, false and malicious accusation and considered by scholars as one of the major sinful acts39. Again, in a narration by Abu Hurairah, Messenger of Allah s.a.w. asked, 'do you know what is backbiting?', they replied, 'Allah and His Messenger know best.' He s.a.w. said, 'it is saying something about your brother which he dislikes.' Someone asked, 'what if what I said about my brother was true?' He s.a. replied, 'if what you say about him is true you have backbitten him, and if it is not true, you have slandered him.' (reported by Muslim)40.

Page 6 These texts are sufficient samples of the textual basis for the protection of the privacy and personal data of any person exemplified 6 MLJ xcix at cvi by backbiting as eating the flesh of the dead person. Further, it is immaterial whether or not the saying and uncovering the facts about another person is true or not as long as the person concerned dislikes it, it is considered as a major sinful act. Under the Islamic law, hisbah has the responsibility as the enforcement institution which literally means ihtisab i.e to check, manage, see, prevent or stop someone from doing vices, or to get reward, like a person doing good deed to get hisbah (reward) from Allah swt41. Technically, Imam Al-Mawardi clarify that responsibility of hisbah as to invite people doing good (ma'aruf) and forbid any wrongdoing (munkar)42. According to al-Ghazali, the muhtasib (also called 'amil al-suq' and 'sahib al-suq') was the inspector of public places and behavior in towns in the pre-modern Middle East and North Africa (and in some communities of Muslims elsewhere). While the term muhtasib is usually translated as 'market inspector,' this official's actual charge was much broader. The existence of muhtasib is based on the injunction 'to command the right and forbid the wrong,' the muhtasibwould patrol public spaces and enforce 'laws' wherever he saw a violation 43. There are various verses44 of the Al-Quran regarding injunction of hisbah, among other:
Let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong: they are the ones to attain felicity 45. Ye are the best of peoples, evolved for mankind. enjoining what is right, forbidding what is wrong, and believing in God. if only the people of the book had faith: it were best for them: among them are some who have faith, but most of them are perverted transgressors46. They believe in God and the last day; they enjoin what is right, and forbid what is wrong; and they hasten (in emulation) in (all) good works: they are in the ranks of the righteous47.

6 MLJ xcix at cvii Ghazali stated that the muhtasib's concern is each wrong that is presently existing, manifest to the muhtasib without spying (tajassus), and whose wrongness is known without independent legal reasoning (ijtihad). By use of the term muhtasib, Ghazali is not referring only to an official appointed to carry out the injunction to command the right and forbid the wrong but rather any Muslim who takes action in this regard48. According to Ghazali, the muhtasib's jurisdiction covers both major and minor sins. Muhtasib has the right to the judgment on the spot, for example, Umar bin Al-Khattab was throwing away the deceived milk on the ground as a punishment to his owner.49 The muhtasib may only address a wrong that is manifest (zahir); the muhtasib is not permitted to try to gain information about a sin that a person conceals in his home behind a closed door. 50 The classic story told to define the muhtasib's exclusion from the home is about the second caliph, 'Umar bin Al-Khattab, who scaled the walls of a house, saw the owner in a reprehensible state and, acting in the capacity of a muhtasib, reproved him. The owner replied, 'O Commander of the Faithful, if I have sinned once, you have sinned three times.' 'How so?' asked 'Umar. The owner replied: 'The Al-Quran says: 'Do not spy' and you have done so. The Al-Quran says: 'Come into houses through their doors,' and you have entered over the roof. And the Al-Quran says: 'Do not enter the houses of others until you have made yourselves known and greeted the inhabitants,' and you have not greeted me.' Totally out-lawyered, 'Umar retreated 51. The question is, what if the muhtasib enters the home, mistaking the source of a musical entertainment and believing himself to be acting properly, and then by chance finds the owner having a quiet drinking party with a few friends? According to Al-Ghazali, in the latter 6 MLJ xcix at cviii case, the muhtasib must stop them and punish them. There does not seem to be a rule that bars the use of evidence obtained wrongly although in good faith. This example is in contrast to the

Page 7 case of 'Umar, who did not pursue charges against the man whose house he had entered improperly52. Ghazali also makes clear that a person carries his privacy with him, and the muhtasib can judge only on prima facie appearance. Perhaps someone has a flagon of wine in his sleeve or under his cloak, and circumstances tell the muhtasib that it is there (for example, the man is a heavy drinker who has just visited the area of wine shops in a Christian district). As long as there is no 'particular sign' ('alama khassah) of its presence, he cannot be searched; circumstantial evidence is not sufficient. But if the outline of the flagon or lute becomes visible, then he should be searched53. Ibn al-Ukhuwah followed the same general rule as Ghazali, stating that the wrongs within the muhtasib's jurisdiction are those that are manifest (zahir) and that the muhtasib is not permitted to investigate a wrong being committed at home behind closed doors. Ibn al-Ukhuwah added an important exception to this rule, however: when the situation involves an imminent crime the damage of which will not be remediable, the muhtasib may spy in order to investigate. The example given of such a situation is when someone the muhtasib believes to be reliable informs him that a man has retreated into seclusion with another man in order to kill him 54. In other words, the muhtasib may enter the most private space of the home, according to Ibn al-Ukhuwah, when it is necessary to prevent an imminent crime, the wrong of which cannot be later undone. While there may be occasions in which the muhtasib is allowed to spy upon, or enter, private homes, there is a clear rule as to how neighbors should treat one another. Ibn al-Ukhuwah provided that no one is permitted to peer into his neighbor's house from the roofs or windows 55. There is no exception here for wrongs in progress or on the verge of being committed; a private individual has no right to 6 MLJ xcix at cix breach the privacy of another. The muhtasib, as an appointed official, would be expected to have a certain level of education and skill and be knowledgeable of the rules contained in a manual such as Ibn al-Ukhuwah's. The muhtasib is therefore permitted a certain degree of discretion in intruding upon private space, whereas to permit this to all individuals would destroy the sanctity of the home. The fact that Islam recognizes the right of privacy, that right, however, cannot be an excuse for violating the law in the private sphere. However, in order to uphold fairness and justice, certain matters which one regards it as private or personal data may be exposed to the authorities. For instance, the very existence of family law is a proof that people's private life is not above legal supervision. The law may force married and divorced couples, for example, to disclose negotiations about pre-nuptial agreements and divorce settlements that have taken place in private environments. Moreover, it is known that searching private environments for legal evidence relevant to criminal or civil cases is allowed without ignoring the fact that there should be acknowledgement and respect of the right to privacy. In criminal cases then, search warrant is provided to the authorities for the purpose of search, seizure and gathering of information and evidence of the crime committed in private places. This is so because unlawful activities, such as drug-abuse, domestic violence and incest do take place in private environments, and no legal system would grant an all-encompassing protection of privacy that turn the law itself inept or inapplicable in private environments. If the law is to be an effective tool in achieving its goals, law's application cannot be suspended in the private sphere by a right to privacy. Hence, respect for people's privacy and the rule of law must therefore be balanced against one another, which, indeed, is often a hard balance to achieve. In short, Islam restricts the right to privacy and personal data if it is for the purpose of attainment of justice and fairness for all. Furthermore, there are apparent clash between the protection of privacy and the enforcement of the law in private settings relating to the questions on law of evidence in particular. Should the witnesses be prevented by the law from delivering their testimony for the sake of protecting the

Page 8 privacy of the one suspected of that offence? Alternatively, should the suspect be given an evidentiary privilege allowing him to prevent those who intend to testify against him from delivering their testimony for the same reason? Or, should privacy take a back seat in order that the rule of law receives more attention? Certain Al-Quranic verses have emphasized the importance of voluntary conveyance of the testimony when it is needed to establish 6 MLJ xcix at cx justice. According to the Al-Quran, Muslims are exhorted not to conceal their testimony and are considered sinful 'in their hearts' if they fail to perform their duty in this regard. Allah commands 'The witnesses should not refuse when they are called on (for evidence)' 56. Then, Allah said which mean '...conceal not evidence; for whoever conceals it, his heart is tainted with sin, and God knoweth all that ye do57.' From this verse, Muslim jurists have inferred that delivering a needed testimony is the duty of all capable of conveying it unless already performed by other members of the Muslim community. This is called fardhu kifayah, that is, a duty not incumbent on all Muslims but it is expected of some of them to carry it out. As such, in Islam, once a witness has been summoned to the authorities to give evidence, it is compulsory for him to give the true account of information needed by the authorities. If he is not called by the authorities, it is left to the person to voluntarily reveal the information or not, if other witness has come forward to give evidence. Privacy under Civil Law The right to privacy is not specifically recognized under civil law. The protection was given under few branches of law like copyright, torts of breach of confidence and unlawful search and seizure. It was specifically developed and recognized way back in 1890 where Warren and Brandeis articulate the protection of privacy in their article58. They highlighted the right to privacy, for example, protection against unlawful search and seizure which it is believed that the common law provides him with one, forged in the slow fire of the centuries, and today fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its command. Shall the court thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity? 59 Unlike the position in the United States, most of the English courts in the 20th century did not explicitly recognize a common law right of privacy. Fleming explained the reluctance of English courts to develop privacy tort as: 6 MLJ xcix at cxi
For one thing, the traditional approach has been to formulate tort liability in terms of reprehensible conduct rather than of specified interests entitled to protection. For another, our courts have been content to grope forward cautiously along the grooves of established legal concepts, like nuisance and libel, rather than make a bold commitment to an entirely new head of liability60.

For example in the case of Victoria Park Racing & Recreation Grounds Co Ltd. v Taylor61 where the High Court judge Latham CJ made an obiter comment:
However desirable some limitations upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists62. In Malone v Metropolitan Police Commissioner [1979] 2 WLR 700, one of five defendants charged with handling stolen property, the prosecution admitted that there had been interception of the plaintiff's telephone conversations on the authority of the Secretary of State's warrant. The plaintiff issued a writ claiming inter alia that such interception had been, and was, unlawful and he sought by motion an injunction against the Metropolitan Police Commissioner to restrain interception or monitoring of telephone conversations on his line. His contentions were:

Page 9


that interception, monitoring or recording of confidential conversations on the plaintiff's telephone lines without his consent, or disclosing them to third parties, or making use of them was unlawful, even if done pursuant to a warrant of the Home Secretary, and disclosing details of telephone calls was similarly unlawful; that, in the alternative, all such interception, monitoring or disclosure was unlawful, where made without the plaintiff's consent, to any officer in the Metropolitan Police, the Home Secretary or the Home Office or any officer thereof; that the plaintiff had a right of property, privacy and confidentiality in respect of telephone conversations on his telephone lines, and that interceptions, recordings and disclosures as in (1) were in breach thereof; that, in the alternative and in relation to human rights, there was no remedy under English law for interceptions, monitoring or recordings of conversations on his telephone lines or the disclosure of the contents thereof to third parties; that interceptions and monitoring of his telephone lines violated article 8 of the Convention for the Protection of Human Rights and 6 MLJ xcix at cxii Fundamental Freedoms (which entitled everyone to 'respect for his private and family life, his home and his correspondence');

1) 1) 1)

It was held by the court that no unlawful conduct had been established by the police since there was no law against it. Furthermore, it was held that there was no general right of privacy recognised by English law and thus the plaintiff's claim to have a particular right to telephonic privacy in his own home must fail. In the Australian case of Giller v Procopets63 Gillard J rejected the claim of invasion of privacy by the plaintiff because there is no cause of action for breach of privacy under Australian law, where he referred to the English decisions in Kaye v Robertson64 and Wainwright v Home Office65. In Wainwright66, the plaintiffs were the mother, Mary and half-brother, Alan, of a man held on remand in a prison on a charge of murder, Patrick. The prison authorities suspected Patrick was dealing in drugs while awaiting trial, so the governor of the prison gave instructions that all Patrick's visitors were to be strip searched. Both Mary and Alan were strip searched when they visited Patrick. The trial judge found that the searches conducted by the prison officers were contrary to the prison's guidelines. The trial judge awarded damages to each of Mary and Alan. However, the Court of Appeal did not agree with the trial judge's reasoning and did not consider that (apart from the battery, which was unchallenged) the prison officers had committed any other wrongful act. On appeal to the House of Lords, the appellant seek declaration from the House of Lords that there is a tort of invasion of privacy under which the searches of Mary and Alan were actionable and damages for emotional distress are recoverable. It was held by Lord Hoffman (Lords Bingham, Hope, Hutton and Scott concurring) that:
a general tort of invasion of privacy is not part of English law. There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. But there is a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. Nothing in the jurisprudence of the European Court of Human Rights suggests the adoption of a high level principle of privacy is necessary to comply with art 8 of the European Convention for the Protection of 6 MLJ xcix at cxiii Human Rights and Fundamental Freedoms. Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies.

As discussed before, the right of privacy was recognised at the later part of the 19th century. Arguments were put forward by legal scholars as to whether or not to regulate the privacy. In the

Page 10 first place, after recognising the privacy and providing the law to safeguard it, later they try to widen the scope of privacy by using the law. The protection of privacy evolve in common law mainly focus to protect privacy in a 'private' place, to the extent of allowing immoral activities among the consenting adults in private places. In 1954, there was a report by a committee on Homosexual Offences and Prostitution known as the Wolfenden Report67. The committee outlined that 'our own formulation of the function of the criminal law so far as it concerns the subject of this inquiry. In this field its function, as we see it is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable. It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.' The Wolfenden Committee was appointed to consider the state of British criminal law in relation to homosexuality and prostitution. The Committee submitted its findings in September 1957 and recommended by a 12 to 1 majority that homosexual practices between consenting adults in private should no longer be a crime. As to prostitution, they found unanimously that, while it should not be made illegal, legislation should be introduced to drive it off the streets since public solicitation was an offensive nuisance to third parties. Lord Devlin's response was to reject the committee's position that law has no business with private morality, for he believed, private immorality, contrary to the committee's argument is injurious to the public. For him, any attempt to resolve questions about the legitimacy of legally enforcing moral obligations by distinguishing immoralities that implicate public interests from those that are merely private was doomed to failure. He further maintained that the morality which the law must enforce should be popular or conventional morality. He also took the view that 'morality is based on religion, not only as a matter 6 MLJ xcix at cxiv of history, but also a matter of logic: morals and religion are inextricably linked.' Devlin's disintegration thesis renders social cohesion unconditionally valuable so that public authorities may suppress anything which a large enough majority strongly perceives to be immoral. Ultimately, it is this view that represents 'the real threat of tyranny 68'. Professor Hart in his response took the opposite position, essentially defending the position of the Wolfenden Report and resting his argument on Mill's famous statement on liberty: 'The only purpose for which power can rightly be exercised over any member of civilised community against his will is to prevent harm to others. His own good either physical or moral is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others to do so would be wise or even right.'69 Thus, the Wolfenden Report's litmus test for legitimate state interference with alleged immorality is whether the act in question would, in itself, damage the interests of non-consenting parties. In the absence of indecency, corruption, or exploitation, the act is a private one beyond the reach of political authority whether immoral or otherwise. In the United Kingdom however, emphasis has been given for protection of data especially on data stored in computers. In the case of R v Brown70, Lord Hoffman said:
Vast amount of information about everyone are stored on computers, capable of instant transmission anywhere in the world accessible at the touch of a keyboard. The right to keep oneself to oneself, to tell other people that certain things are none of their business, is under technological threat 71'.

Data Protection Act 1998 was introduced to repeal Data Protection Act 1984. 72 Under this Act, personal data is defined as: data which relate to a living individual who can be identified

Page 11

1a) 1b)

from those data, or

2 6 MLJ xcix at cxv from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;

Basically, the Act defines a legal basis for the handling in the United Kingdom of information relating to living people. It is the main piece of legislation that governs the protection of data in the United Kingdom. Although the Act does not mention privacy, in practice it provides a way in which individuals can enforce the control of information about them. Disclosure may be allowed in a limited number of situations as is the case of banking where rules concerning when personal data may be disclosed were laid down in Tournier v National Provincial73 where it was held that disclosure of confidential information could proceed where the interest of the bank required disclosure. Arguably, since this is an old case, that in present situation, greater respect of privacy of individuals should be adhered, like by reason of public interest or when it is required by law. In the case of Gaskin v United Kingdom74 the court held that certain records relate to 'private and family life' in such a way that the issue of access falls within the ambit of Article 8 of the European Convention on Human Rights. In this case, the court awarded 5000 as compensation for non pecuniary injury in respect of emotional distress and anxiety. Under Data Protection Act 1998, it is pertinent to get the consent from the data subject in any matter to enable the information to be collected. In the case of Innovation (Mail Order) Ltd v Data Protection Registrar75 the Data Protection Tribunal stated that 'fair obtaining' means that at the time that information is collected, the data user needs to inform the data subject of certain matters that will enable the individual to decide whether to provide the information or not particularly, this includes information about the intended uses for the data unless such use could be considered obvious. As such, it is clear that right to privacy in the United States, was hardly recognized until the year 1890 whilst under common law of United Kingdom the recognition can only be traced in the 20th century. It is until 1948 where the right to privacy has been expressed as a fundamental human right. Article 12 of the UN Universal 6 MLJ xcix at cxvi Declaration of Human Rights adopted in 1948, proclaims that:
No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour and reputation. Everyone has the right to the protection of law against such interference or attacks.

In the United States case of McVeigh v Cohen76, the Court observed:

in these days of 'big brother,' where through technology and otherwise, the privacy interests of individuals from all walks of life are being ignored or marginalized, it is imperative that statutes explicitly protecting these rights be strictly observed.

There are several provisions which protect the individuals against any intrusion of privacy, among others, the United States Constitution provides for the rights to privacy under Fourth Amendment which states:

Page 12

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Besides, s 652B of the Second Restatement provides 'intrusion' as:

one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Under Section 652D of the Second Restatement on 'public disclosure', it provides that:
one who gives publicity to a matter concerning the private life of another subject to liability to the other for invasion of his privacy, if the matter publicised is of a kind that:

1a) 1b)

would be highly offensive to a reasonable person; and is not of legitimate concern to the public.

In Griswold v Connecticut77, the US Supreme Court declared that the State law prohibiting the use of birth control devices and the giving of advice concerning their use as unconstitutional because it is against the right of privacy. in Katz v United States78, the court held that 6 MLJ xcix at cxvii people preserve their bodily privacy by wearing clothes in public and undressing in private. It makes no sense to protect the privacy of undressing unless privacy while clothed is presumed. Our interpretation gives effect to a legislative intent to protect the right of people to control the exposure of their bodies to public view. The statute protects people, not places. To put it the other way round, the law may control as to what extent any person may expose their bodies to public view. Courts in the United States have taken various positions in cases involving an employee's use of e-mail and the Internet at work. In the case of United States v. Simons 79, it was held that an employer that has a 'business use only' policy for Internet usage may conduct audits of its computer network to identify, terminate, and prosecute unauthorized activity. The court found that while employees may have a legitimate expectation of privacy in their computer equipment, some office practices, regulations, or procedures may reduce such an expectation. In Whalen v Ro80 a constitutional right to information privacy is recognized and it was held that it can protect against employer disclosures of employees' personal information. It is worth to note that in United States, the protection of privacy is expressly and specifically recognized in the eyes of the law which can be seen under various provisions of statutes. 81 In other words, the protection of privacy in US is clearly stated which may also be translated into the meaning that it provides greater protection generally with certain limits and exceptions. Privacy in Malaysia The Federal Constitution of Malaysia does not specifically recognize the right to privacy, but does provide for several related rights, including freedom of movement 82, freedom of assembly, speech and association83.

Page 13 Thus, certain restrictions regarding the above rights may be imposed by the law in order to safeguard the interest and security of the Federation and to maintain public order. In other words, rights 6 MLJ xcix at cxviii granted under art10 are not absolute. There are laws limiting the rights protected in art10. For example the Official Secrets Act 1972 as opposed to the rights of disclosure of public servants. This is more on protecting government privacy rather than individuals. Other related statutes also limit the rights of individual privacy, for instance, s 39 of the Anti-Corruption Act 1997, s 245 up to s 247 of Communication and Multimedia Act 1998, s 30 of Internal Security Act 1960, s 10(2) and (3) Computer Crimes Act 1997 and Anti Money Laundering Act 2000. These provisions showed that rights to privacy are recognized but limited in its application. In detail, under s 231 of Communications and Multimedia Act 1998, it is considered as an offence if any person who uses any apparatus or device with intent to obtain information regarding the contents, sender or addressee of any communication without an approval by a registered certifying agency under Chapter 3 of Part VII of the Act. Further, s 234 of the Act prohibits any interception and disclosure of communications. Section 10 of Computer Crimes Act 1997 gives power to police officer to have access to any program or data held in any computer, or have access to, inspect or check the operation of, any computer and any associated apparatus or material which he has reasonable cause to suspect is or has been in use in connection with any offence under this Act. Similarly, any police officer not below the rank of Inspector may, under s 30(1) of Internal Security Act 1960, without warrant and with or without assistance to enter and search any premises if he suspects that any document, publication, material or article being evidence of the commission of an offence against this Act. Under the Anti-Money Laundering Act 2001, s 9 of the Act provides that any competent authority may, in writing, authorize any enforcement agency or its designated officers to have access to such information as the competent authority may specify for the purposes of performing the enforcement agency's functions. Moreover, an investigating officer may, without a search warrant, enter, inspect and take possession of any document as well as search any person in that premises if the investigating officer has reason to suspect that an offence under this Act has been committed. There are few numbers of cases which directly or indirectly discuss the issue of privacy and personal data. In the case of Public Prosecutor v Lee Sin Long84, the court recognize the right of privacy where Callow J said, 'The privacy of a 6 MLJ xcix at cxix person in his home must be respected, and cannot be disturbed unless first shown to proper authority that reasonable cause for interference is warranted. Without a warrant the householder might be justified in refusing admission to a police officer85.' Further in the case of Dato' Tan Kim Hor & Ors v Tan Chong Consolidated Sdn Bhd86. This was the plaintiffs' application, pursuant to s 167(6) of the Companies Act 1965, for an order that the accounts and other records of the defendant be open for inspection by a qualified auditor acting for the plaintiffs. The plaintiffs gave an undertaking, purportedly under s 167(6) of the Companies Act 1965 not to reveal any information obtained by the auditor after their inspection, except to themselves as directors The court in dismissing the application held that ' It is also the defendant's case that being an exempt private company, the privacy of their accounts must be maintained, a fortiori when the plaintiffs themselves have not adduced any reason why an internal auditor should inspect the defendant's private records.' Moreover, though the evidence was obtained through an intrusion of one's privacy or the personal data without the consent of the person, the court still accept the evidence because it does not matter of how it was obtained but what matter is only the question of relevancy. In the case of Ng

Page 14 Yiu Kwok & Ors v PP87 'The court should only be concerned with evidence to see if they are admissible, not when or how such evidence were obtained 88.' In the Privy Council in the case of Kuruma v The Queen89 Lord Goddard CJ said:
the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained... There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused90.

However, for the purpose of justice, a witness may be compelled to give evidence and the issue of privacy or protection of personal data cannot be raised by the accused. In the case of Public Prosecutor v 6 MLJ xcix at cxx Haji Kassim91, few questions were referred to the Federal Court under the provision of s 65(1) of the Courts of Judicature Act 1964 and one of it was ' Can an incriminating statement made by an accused to a psychiatrist or a medical officer be admissible against the accused and especially when it springs from the existence of the highest degree of confidence between the psychiatrist and the patient? Does this special relationship affect its admissibility? The Federal Court held that the privilege of excluding professional confidence in s 126 of the Evidence Ordinance does not protect professional disclosures made to clergymen or doctors. The answer to the first question, therefore, must be in favour of admissibility'. Previously, in 1999, the Ministry of Energy, Communications and Multimedia 92 has tabled a new piece of legislation on Personal Data Protection Bill 93 (hereinafter referred to as the Bill) where the aim of the Bill is to regulate the collection, possession, processing and use of personal data by any person or organization so as to provide protection to an individual's personal data and safeguard the privacy of an individual and to establish a set of common rules and guidelines on handling and treatment of personal data by any person or organization. Under the Bill, any type of processing of personal data will have to be in compliance with all the data principles. Here, the term process is defined widely to mean, 'the carrying out of any operation or set of operation on any personal data and includes recording, amendment, deletion, organization, adaptation, alteration, retrieval, consultation, alignment, combination, blocking, erasure, destruction or dissemination of the personal data 94'. This means that where files are only retrieved, it is already considered as being processed, and therefore is subjected to the data principles. Section 4 of the Bill requires that all the data principles in the schedule is to be complied with whenever any personal data is collected, held, processed or used by data user. It provides that personal data must not to be disclosed unless in relation to the purpose in which it is collected. In relation to this, s 42 contains certain exceptions such as, the data subject or relevant person has consented to the disclosure, the disclosure is necessary for the purpose of preventing or detecting crime, the disclosure is required under the law, or the disclosure is justified as being in the public interest. The data subject may withdraw his 6 MLJ xcix at cxxi consent for the disclosure of his personal data. In this instance, the data user has a duty to cease to hold, process or use, the personal data. In Malaysia, we can see that we are moving towards providing the protection of privacy, in particular, personal data protection which is hoped to be introduced soon to complete our legal framework in order to cope with the rapid advancement of information technology globally. Conclusion The discussion above shows that Islam recognized protection of privacy and personal matters and the protection are acknowledged not only to the Muslims but to the non-Muslims as well.

Page 15 According to Islam, privacy is the most comprehensive of rights and the right most valued by Islam. All personal matters are protected and considered sacred and they should not be violated unless there is a compelling reason warrants violation of personal privacy. If there is a compelling reason warrants violation of personal privacy, then government has the right to intervene. However, no person shall be deprived of his privacy without due process of the law. In other words, the right to privacy, in Islam, is not absolute. Disclosure can be required of persons and organizations suspected of engaging in unlawful activities with evidence. Besides that, Islam, to a certain extent protects the privacy on acts committed within a private sphere. This is however does applicable if the act is committed in public places. One cannot claim that his act is within his right of privacy though it is against the well accepted norms and principle in a society if it is done in public places. On the contrary, common law has always recognized the protection of privacy in a private place in respect of any acts between consenting adults in private place, eventhough the act is immoral. Both system of law, Syariah and common law acknowledge that privacy is one of the fundamental human rights which only open to intrusion and intervention when the law permits. As we have seen, the common law of England does not provide a specific provision for the protection of privacy though that does not mean the right to privacy is totally alien under that system. In the United States however, after Warren and Brandeis promulgated the right to privacy in 1890, the United States Constitution clearly provides for the protection of privacy under the Fourth Amendment. In Malaysia, there is no specific provision under the law, even in the Federal Constitution, to protect privacy. The laws in Malaysia only provide for provision where privacy cannot be expected in circumstances provided under the several relevant laws. Hence, it is interestingly to note that, in Islam, it has long recognised the right to privacy since the 6 MLJ xcix at cxxii revelation of Al-Al-Quran during the prophethood of the Holy Messenger Muhammad saw. References Abdul Al-Autwah (1969) Muhadarah fi Nizam al-Qada' fi al-Islam, Egypt: Maktabah al-Ahkam, Abdullah Yusuf Ali (1992) The meaning of the Al-Quran, Washington, USA: Amana Corporation Abi al-Hassan Ali bin Muhammad al-Mawardi (nd) Al-Ahkam al-Sultaniyyah, Egypt: Al-Maktabah al-Tauifiqiyyah. Ahmad Ibn Hanbal (nd. Musnad Imam Ahmad. Beirut, Vol 4 Al-Imam Muslim (nd. Sahih Muslim. Terjemahan oleh Ma'mur Daud, 2003. Singapura: Darel Fajar. Basil Mitchel. (1970. Law, Morality and Religion in a Secular Society. London: Oxford University Press. Berween, Mohame. (2002. The Fundamental Rights: An Islamic Perspective. The International Journal of Human Rights, Vol 6, No 1) Spring 2002(. London, UK Berween, Mohamed (2004. The Fundamental Rights: An Islamic Perspective, online at option=content&task=view&id=320&Itemid=86 Edward Bloustein. (1964). Privacy as an Aspect of Human Dignity, 39 New York University Law Review 971 Fleming, John G (1998. The law of torts (9th Ed) Sydney : The Law Book Company Limited George, RP (1993) Making Men Moral:Civil Liberties and Public Morality, Oxford: Oxford University Press. Ibn al-Ukhuwah, Muhammad b Muhammad b Ahmad al-Qurashi. (1976). Kitab Ma'alim al-Qurba fi Ahkam al-Hisba. Cairo: al-Hai'a al-Misriya.

Page 16 Ibn Hajar al-Asqalani. (undated). Bulugh al-Maram. Translation by Muhammad bin Ismail alSanani, 2002, Riyadh: Darussalam. Ibn Qayyim al-Jawziyyah. (undated). Turuq al-hukmiyyah, translation by Ala'eddin Kharoffa (2000). Kuala Lumpur: International Law Book Services. Llyod, IA (2000. Information Technology Law (2nd Ed, Reprint) Edinburgh: Butterworths. 6 MLJ xcix at cxxiii Mohsen Kadivar. (2003). An introduction to the public and private debate in Islam -- Part I: public/private: the distinction. Online at Mottahedeh, Roy, Stilt, Kristen. (2003). Public and private as viewed through the work of the muhtasib. Social Research available at Muhammad Asa. (1980. The message of the Al-Quran, Gibraltar: Dar al-Andalus. Muhammad Thalib (2001. Tafsir Al-Maraghiy, Vol 13 (Juzuk 25 & 26) by Ahmad Mustafa AlMaraghiy. Kuala Lumpur: Dewan Bahasa dan Pustaka. Smith, R, (2000. Ben Franklin's Web Site, Privacy and curiosity from Plymouth Rock to the Internet, Providence: 6 Privacy Journal. Standler, RB (1997. Privacy Law in the USA at Warren, S, Brandeis, L (1890. The Right to Privacy, 4 Harvard Law Review 193-220 Yusuf Zak. (2000. Tafsir Fi Zilalil Al-Quran, Vol 11, by Asy-Syahid Sayyid Qutb. Kota Bharu: Pustaka Aman Sdn Bhd

1 Mohsen Kadivar. (2003). An introduction to the public and private debate in Islam -- Part I: public/private: the distinction. Online at on 15 July 2007). 2 Warren, S, Brandeis, LThe Right to Privacy, 4 Harvard Law Review 193-220, 1890. 3 Llyod, IA (2000). Information Technology Law. 2nd Ed. Reprint. Edinburgh: Butterworths. 4 Edward, B Privacy as an Aspect of Human Dignity, 39 New York University Law Review 971, 1964. 5 Smith, RE, Ben Franklin's Web Site 6, Privacy and curiosity from Plymouth Rock to the Internet, Providence: Privacy Journal, 2000. 6 Standler, R.B., Privacy Law in the USA, 1997. Online at 7 Ibid. 8 Mohamed Berween. (2002). The Fundamental Rights: An Islamic Perspective. The International Journal of Human Rights, Vol 6, No 1) Spring 2002(. London, UK. 9 Al-Maidah - 5:32. See also al-Israa'- 17:33. 10 Al-Israa' 17:70 , al-Mukmin 40:64, al-Hujuraat 49:11, see also at-Tin 95:4 11 Al-Maidah 5:2, and 5:8, an-Nisaa' 4:135, al-Hujuraat 49:6, al-Israa' 17:36, An-Nisaa' 4:58. 12 An-Nisaa' 4:58.

Page 17

13 Al-Baqarah 2: 256, Al-Kahfi 18: 29, Yunus 10: 99, Al-An'aam 6:108, Al-Ankaabut 29:46, Al-Kaafiruun 109:1-6. 14 Al-Baqarah 2: 188, Al-Baqarah 2: 267 15 Al-Zaariyat 51:19. 16 Al-A'raf 7: 165, Ali-Imraan 3: 110 17 An-Nur 24:27-28 18 Ibid. 19 Al-Baqarah 2:189 20 Al-Hujuraat 49: 12 21 An-Nur 24: 58 22 Mohamed Berween. (2002). The Fundamental Rights: An Islamic Perspective. The International Journal of Human Rights, Volume 6, No. 1) Spring 2002(. London, UK. 23 Berween, Mohamed, The Fundamental Rights: An Islamic Perspective, 2004. Online at content&task=view&id=320&Itemid=86 24 Al-Baqarah, 2:256. 25 Abdullah Yusuf Ali, The meaning of Al-Quran, Amana Corporation, USA, 1992. 26 Muhammad Asad, The message of the Al-Quran, Gibraltar, Dar al-Andalus, 1980. 27 Al-Baqarah, 2:208. 28 Al-Baqarah, 2:85. 29 Al-Balad, 90:10. 30 Abdullah Yusuf Ali, The meaning of Al-Quran, Amana Corporation, USA, 1992. 31 An-Nur, 24:27-28. 32 Muhammad Asad, The message of the Al-Quran, Gibraltar, Dar al-Andalus, 1980. 33 Ibn Qayyim al-Jawziyyah. (undated). Turuq al-hukmiyyah, translation by Ala'eddin Kharoffa, International Law Book Services, Kuala Lumpur, 2000, at pp 56-57. 34 Yusuf Zaky. Tafsir Fi Zilalil Al-Quran, volume 11, by Asy-Syahid Sayyid Qutb, Pustaka Aman Sdn Bhd, Kota Bharu, 2000. 35 al-Baqarah, 2:189. 36 al-Hujurat, 49:12. 37 Muhammad Thalib., Tafsir Al-Maraghiy, Vol. 13 (Juzuk 25 & 26) by Ahmad Mustafa Al-Maraghiy, Dewan Bahasa dan Pustaka, Kuala Lumpur, 2001.

Page 18

38 Ibn Hajar al-Asqalani. (undated). Bulugh al-Maram. Translation by Muhammad bin Ismail al-Sanani, Darussalam, Riyadh, 2002. Hadith no 1315 at p 480. 39 Ibn Hajar al-Asqalani. (undated). Bulugh al-Maram. Translation by Muhammad bin Ismail al-Sanani, Darussalam, Riyadh, 2002. 40 Ibid. Hadith no 1291. at p 475. 41 Abdul Al-Autwah, 1969. Muhadarah fi Nizam al-Qada' fi al-Islam, Egypt: Maktabah al-Ahkam, p 78. 42 Abi al-Hassan Ali bin Muhammad al-Mawardi (n.d) Al-Ahkam al-Sultaniyyah, Egypt: Al-Maktabah alTauifiqiyyah. 43 Mottahedeh, Roy, Stilt, Kristen. (2003). Public and private as viewed through the work of the muhtasib. Social Research available at on 10/7/07) 44 al-Maidah, 5:87-88, al-Hajj, 22:41, Al-Taubah, 9:71. 45 Ali Imran, 3:104. 46 Ali Imran, 3:110. 47 Ali Imran, 3:114. 48 Mottahedeh, Roy, Stilt, Kristen. (2003). Public and private as viewed through the work of the muhtasib. Social Research available at on 10 July 2007). 49 Ibn Qayyim al-Jawziyyah, Turuq al-hukmiyyah, translated by Ala'eddin Kharoffa, 2000. Kuala Lumpur: International Law Book Services, p 303. Malik however abhorred to this action and decided that the milk should be given in charity. 50 Mottahedeh, Roy, Stilt, Kristen. (2003). Public and private as viewed through the work of the muhtasib. Social Research available at on 10 July 2007). 51 Ibid. 52 Mottahedeh, Roy, Stilt, Kristen. (2003). Public and private as viewed through the work of the muhtasib. Social Research available at on 10 July 2007). 53 Ibid. 54 Ibn al-Ukhuwah, Muhammad b. Muhammad b. Ahmad al-Qurashi. Kitab Ma'alim al-Qurba fi Ahkam al-Hisba. Cairo: al-Hai'a al-Misriya, 1976 at p 91 55 Ibid. at p 136. 56 al-Baqarah, 2:282. 57 al-Baqarah, 2:283. 58 Warren, S, Brandeis, L The Right to Privacy, 4 Harvard Law Review 193, 1890. 59 Ibid at 220. 60 Fleming, John G. (1998). The Law of Torts (9th Ed) Sydney : The Law Book Company Limited.

Page 19

61 (1937) 58 CLR 479. 62 Ibid at 496. 63 [2004] VSC 113. 64 [1991] FSR 62. 65 [2003] UKHL 53. 66 Ibid. 67 Basil Mitchell. (1970). Law, Morality and Religion in a Secular Society. London: Oxford University Press. 68 George, RP (1993) Making Men Moral: Civil Liberties and Public Morality, Oxford: Oxford University Press. 69 Basil Mitchell (1970). Law, Morality and Religion in a Secular Society. London: Oxford University Press. 70 [1996] 1 All ER 454. 71 Ibid at p 556. 72 Schedule 16, Part 1, UK Data Protection Act 1998. The Act came into force 16 July 1998. 73 [1924] 1 KB 461. 74 (1989) 12 EHRR 36. 75 29th September 1993; case DA/92 31/49/1. 76 983 F Supp 215, 220 (DDC 1998). 77 381 US 479 (1965). 78 389 US 347, 351, 88 . Ct 507, 19 L Ed 2d 576 (1967). 79 206 F 3d 392 (4th Cir . 2000). 80 429 U.S. 589 (1977). 81 Another example of the statute protecting the privacy of electronic communication in US is Electronic Communications Privacy Act (ECPA) 1986. 82 Article 9 of the Federal Constitution. 83 Article 10 of the Federal Constitution. 84 [1949] MLJ 51. 85 [1949] MLJ 51, per Callow J at p 52. 86 [2004] 1 MLJ 690.

Page 20
87 [1989] 3 MLJ 166. 88 [1989] 3 MLJ 166, per Hashim Yeop A Sani CJ at p 168. 89 [1955] 2 WLR 223. 90 [1955] 2 WLR 223, per Lord Goddard C.J at pp 226-227. 91 [1971] 2 MLJ 115. 92 Now is known as Ministry of Energy, Water and Communications. 93 However, the Bill has been withdrawn. 94 Section 2 of Personal Data Protection Bill.