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Authorities Can Arrest & Search You Without a Warrant Under the FINAS Act If It’s Not Amended

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Image for illustrative purposes only | Source: The Star & Mark Thomas Law

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What a whirlwind these past few days have been for us Malaysians. For a moment back on Thursday (23 July 2020), we thought we’d never be able to record videos of our cats anymore without a license from FINAS.

The Minister of Communications and Multimedia, Saifuddin Abdullah has since clarified that there was a miscommunication (quite ironic there) and that Perbadanan Kemajuan Filem Nasional Malaysia Act 1981 or FINAS Act for short will not be enforced on normal citizens and it will be amended soon.

Phew. Malaysian content creators rejoice!

Source: WOB

For those not in the know, here’s how this whole hullabaloo started in the first place. Basically the government cited FINAS Act on Al Jazeera and their controversial documentary ‘Locked Up in Malaysia’s Lockdown’ for filming without a license.

The Act was never cited in such a looonnnggg time that it has been considered a ‘symbolic law’ or unenforced law all this while. So, a minister citing it in Parliament would definitely make it seems that the government intends to enforce it, which signals bad news for all Malaysians.

Image for illustrative purposes only | Source: Jim Makos

Why? Because the law as it is now has quite an archaic 1981 context and vested a whole lot of power to the authorities.

Did you know that FINAS Act 1981 allows authorities to search and arrest you without a warrant?

All the authorities need to arrest you is for you to be someone they suspect to have committed an offence under the Act.

The way FINAS Act is written currently, virtually anyone can be arrested because recording a video without a FINAS license is considered an offense under the Act, and anyone with a smartphone already has been doing that.

That’s why Malaysians have been calling for the Act to be amended. Let’s delve into this issue together, shall we?

 

1. What FINAS Act defines as “films”

FINAS Act 1981 | Source: AGC Malaysia

The matter was brought up recently in Parliament by Kluang MP, Wong Shu Qi as a question to the Communications Minister. Here’s the written Parliamentary question and answer of the matter, courtesy of Parliament Malaysia’s Official website:

 

 

When Shu Qi asked an additional question regarding the definition of ‘films’ under FINAS Act and whether TikTok, Youtube and other personal media are governed by the Act, Saifuddin Abdullah’s answered by referring to the ‘Interpretation’ section from Part 1 Prelimenary of the Act.

This is what the Act considered as ‘films’:

  • Feature films.
  • Short films.
  • Short subject films.
  • Trailers.
  • Documentaries.
  • Advertising filmlets.
  • Any recording on material of any kind, including video tapes and video discs, of moving images, accompanied or unaccompanied by sound, for viewing by the public or any class of the public.

As you can see, this is too wide of a definition which makes almost every Malaysian in 2020 being liable under this law through its Section 22 (1) which prescribes:

“No person shall engage in any of the activities of production, distribution or exhibition of films or any combination of those activities as specified in subsection 21(1) unless there is in force a licence authorising him to do the same.”

As Saifuddin further clarified in a statement on Friday, this Act was written in 1981, hence it wasn’t crafted with the advent of social media in mind. He further stressed that Cabinet has agree to amend the Act accordingly, but details are not given just yet.

What FINAS Act defines as ‘films’ | Source: AGC Malaysia

 

2. The power to search and arrest without a warrant

Image for illustrative purposes only | Source: Mark Thomas Law

However, one thing not touched upon by Saifuddin is the power vested to the authorities by FINAS Act. This is prescribed under Part VA of the Act.

Specifically in Section 26 (b), any police or officer authorized by the Ministry of Communications can:

  • Arrest without warrant any person who commits or attempts to commit or abets the commission of an offence.
  • Arrest whom he reasonably suspects of being engaged in committing or attempting to commit or abetting the commission of any offence under this Act or subsidiary legislation.
  • If such person refuses or fails to furnish his name and address or there are reasonable grounds for believing that he has furnished a false name or address or that he is likely to abscond.
  • When any person has been arrested, he shall thereafter be dealt with as provided by the Criminal Procedure Code.

Powers of arrest under FINAS Act | Source: AGC Malaysia

Furthermore, under Section 26 (d), authorities are allowed to conduct search without a warrant, if:

  • There is reasonable cause to believe that a building or place have concealed or deposited any films or filming equipment under the offence of the Act.
  • If they have reasonable grounds for believing that a delay in obtaining a search warrant the films, filming equipment, books, documents or things are likely to be removed.

What’s more, with the latter, an officer may exercise all the powers specified in section 26 (c) as if he has a warrant and they can:

  • Break open any outer or inner door of the building or place and enter.
  • Forcibly, enter the place and every part of it.
  • Remove by force any obstruction to enter, search, seizure and removal.
  • Detain every person found in the place until the place has been searched.

Image for illustrative purposes only | Source: The Star

Hence, the way the FINAS Act is now without amendments, here’s one possible scenario that can happen:

An officer given power by the Ministry of Communications can suspect you of recording a TikTok video, arrest you without a warrant, forcibly break into your house to get your phone and detain everyone inside.

 

Okay, regardless what you think of TikTokers out there, this power is a bit excessive, don’t you think? Let’s hope the government will amend it for the better soon!

 

Also read: Calm down Malaysians, You DON’T Have To Pay RM50,000 For A FINAS License

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