LETTER TO THE STAR
With reference to the National Registration Regulations 1990, these security guards do not have the authority or power to inspect or detain a visitor’s identity card.
Regulation 7 on the production and inspection of identity card states:
Any registration officer, police officer, customs officer or any member of the armed forces while on duty, and any other officer or class or description of public officer authorised in writing in that behalf by the director-general may inspect the identity of any person.
https://www.thestar.com.my/
LETTERS: Wrong to retain documents
Friday, 31 Aug 2018
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First and foremost, gaining entry into "private property" such as formal gated communities or condominiums... is different from gaining entry to "public property" such as informal GnG residences. People need to know the difference.
Licensed security guards on duty at "formal gated communities" have the right to ask visitors for MyKad or driving license for recording purposes.
However, security guards at "informal gated communities" do not have the right to do so. In the first place they have no right to block anyone from access to any "public property" residences. The roads do not belong to the RA.
(For example, some ethical RAs of informal 'GnG' residences in PJ only instruct their security guards to take down the vehicle's registration no - which is in accordance to MBPJ's guidelines).
Ethical RAs will follow the guidelines and "the rule of law" but corrupt ones will not as they have their personal agenda. People who are not aware of their rights or the laws will be bullied.
As for informal gated communities (non private property), they have no right to ask for your IC or driving license. (They have no right to stop you from gaining access to a "public property" in the first place - it is illegal for non-strata properties to block roads and then ask for your MyKad details).
RAs, please take note that the above is an offence reportable to the police PDRM.
All "informal G&G residences" under "individual-title" are categorized as under public property and not private property. (Examples here would be all the double-storey link houses in Setia Alam and Bandar Bukit Raja).
Know your rights - the security guard cannot stop you from entering an 'informal GnG' residence (public property), or ask any resident to register each time they want to go home even if they do not join the RA's questionable scheme.
They also have NO right to ask the public for their MyKad or driving licence when they want to enter any public property such as an informal gated community residence. (That's why it's being termed as "public property" - it belongs to the public, no need for MyKad).
[Only security guards on duty at "formal G&G residences" can ask for your MyKad or driving license. They have the right to do so at "private property" or "strata-titled properties" such as condominiums and formal gated communities.
They can ask for your identity for the sole purpose of recording your particulars and then returning it immediately, if you want to gain access to visit your friends or family there. They also cannot retain your MyKad or take a picture of it. (An example of a 'formal gated community' would be Setia Eco Park).
(No one can ask for your MyKad or driving licence except for officers of the government on duty such as the police, customs, immigration, military, etc. under Peraturan 7 - KDN) You can report this offence to PDRM.
[Pengawal keselamatan yang bertugas di kediaman awam (termasuk komuniti berpagar tidak formal - tidak dibenarkan meminta dokumen identiti seperti MyKad ataupun lesen memandu daripada pihak awam. Mereka hanya dibenarkan meminta dokumen identiti pelawat (bagi tujuan rekod butiran) di premis persendirian sahaja seperti di kondominium dan komuniti berpagar yang formal.]
Peruntukan Peraturan 7 Peraturan-Peraturan Pendaftaran Kebangsaan 1990 memperuntukkan bahawa hanya seorang pegawai pendaftaran, pegawai polis, pegawai kastam, pegawai tentera atau pegawai lain yang diberi kuasa bertulis oleh Ketua Pengarah Pendaftaran sahaja yang dibenarkan untuk meminta dan memeriksa identiti seseorang dengan mengemukakan kad pengenalan.
(Terimakasih & Penghargaan kpd KDN)
http://www.moha.gov.my/images/maklumat_perkhidmatan/pekeliling_agensi_persendirian/pekeliling_4.pdf
"Syarikat Kawalan Keselamatan hanya boleh meminta dokumen identiti pelawat semata-mata bagi tujuan semakan dan rekod kemasukan ke premis dan kemudian mengembalikannya kepada pelawat selepas identiti mereka direkodkan" - ini hanya dibenarkan di premis persendirian sahaja dan tidak termasuk kediaman awam seperti komuniti berpagar yang tidak formal. (Sila ambil maklum)*
Justeru, pengawal keselamatan hanya boleh meminta dokumen identiti pelawat yang hendak memasuki premis persendirian sahaja (seperti di kondominium dan komuniti berpagar yang formal sahaja). Pengawal keselamatan tidak dibenarkan meminta dokumen identiti di kediaman awam.
Secara ringkas, syarat-syaratnya adalah seperti berikut:
1) Pengawal keselamatan dibenarkan meminta dokumen identiti pelawat hanya di premis persendirian sahaja seperti di kondominium dan komuniti berpagar yang formal. (Ini tidak dibenarkan di kediaman awam seperti komuniti berpagar yang tidak formal).
2) Syarikat kawalan keselamatan mestilah berlesen dan berdaftar dengan Kementerian Dalam Negeri (KDN - Lesen Agensi Persendirian)
3) Pengawal keselamatan mestilah memakai pakaian seragam dan lencana sah yang diluluskan KDN (Lampiran 1 di bawah Seksyen 3 Akta No. 27/71 - Pengambilan Pengawal dan Pekerja)
4) Pengawal keselamatan mesti mempunyai KPPK (kad pengenalan pengawal keselamatan) yang sah dan telah melalui program latihan CSG serta tapisan keselamatan KDN.
5) Menepati semua syarat seperti terkandung dalam Lesen Agensi Persendirian dan Seksyen 3 Akta No. 27/71 yang dikeluarkan oleh KDN.
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It's illegal for non-strata properties to block public roads...
You are driving down a shortcut that you have used countless times and as you are snickering over gaining the upper hand, you notice a barrier obstructing the road and slam on your brakes. You are confused as to why there is a barrier in the middle of the road and some security guards manning it and roll down your window to ask.
The security guard then demands for your IC/licence and explains that the residents in the area have decided to implement certain security measures and only residents and registered visitors can enter the housing area. Angry over losing your favourite shortcut home, two questions pop into your head:
Can they block off the roads?
Can they demand for our IC or licence for registration purposes?
These also happen to be the most-asked questions every time we publish something related to housing or security but since they involve different areas of the law, this article will cover the legalities surrounding the first question while the IC issue will be covered in a separate article.
What is the difference between condominiums and landed property?
To be more accurate, the difference lies in the title to your property. Land titles for residential areas in Malaysia are divided into strata and non-strata (known as individual titles). Typically, strata titles are for condominiums, apartments, and certain landed properties. The main defining feature for strata properties is not how high it is built but rather owners of strata properties will jointly own what is known as common properties. These are facilities that is provided for by the developer and managed by the management committee and they are things such as roads, gyms and swimming pools.
On the other hand, non-strata (individual) titles are for landed properties alone. The owners of such properties only own the land that their house is situated on and any other facilities that may be in the area, such as roads, and parks, will be public property under the management of the local authorities.
Only strata properties can legally block roads
For strata titles, having guards and boom gates is less of an issue because for strata properties, you are not only the owner of your property, you are also the joint owner of all the common facilities provided for you in the development. This means that anything within the development is essentially private property and is managed by the developers themselves or the management committee.
Since it is private property, the developers are allowed to set up their own gated communities by putting in an application to the relevant authorities. This was allowed after the 2007 amendment to the 1985 Strata Titles Act.
For example, in Selangor, in order to establish a gated and guarded community (“GACOS”), the developer must fulfil certain guidelines laid down by the Selangor government. We don’t have a link to the guidelines and they are pretty long to reproduce here but just know that when it comes to strata properties (ranging from condominiums to exclusive townships), the developers must seek the approval of the authority before creating a GACOS community.
The point of contention for many arises when the owners of landed properties with individual titles try to set up their own barriers and employ their guards. This is especially true for older, non-GACOS developments. To put it simply, older neighbourhoods usually don’t fall under the GACOS scheme which only came into existence in the 2000s.
As these owners merely own the land their unit is situated on, everything else around them is considered public property such as the roads, drainage systems, and parks. Given their public status, you might not be surprised to learn that…
It’s actually “illegal” for non-strata properties to block roads
Under section 46(1)(a) and (b) of the Street, Drainage, and Building Act 1974, it is an offence for anyone to erect or maintain any obstruction or cover any open drain:
“(1) Any person who—
(a) builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place;
(b) without the prior written permission of the local authority covers over or obstructs any open drain* or aqueduct along the side of any street...”
Before you go driving around and refusing to stop for the guards, security concerns have created an understanding that such non-GACOS neighbourhoods could be converted into guarded communities if the Resident’s Association (“RA”) applies for permission from their local authorities. Whether or not their application will be approved depends on whether they fulfil the guidelines given by the Ministry of Urban Wellbeing, Housing, and Local Government. One of the pre-requisites for putting in such an application is that the RA must get at least 85% consent from the residents, though the local authority can accept a lower percentage in some cases.
However, the problem with this is two-fold. The first is that some of the Resident’s Association will not apply for permission and second, guidelines don’t have the force of law. This created some confusion and strife in certain communities and the municipal authorities would come and demolish barricades which were built illegally or when they failed to obtain the minimum consent from the residents.
While the law has been clarified by the highest court in our country, it is clear that many RAs are still not complying with the guidelines given. According to DBKL, from 2011 to 2017, 158 RAs in KL implemented the guarded communities but only 65 applications were approved by DBKL. This showed that many security schemes are operating illegally and this became a thorn to users of the public areas.
Another important point to note is this, while such residential areas can be guarded, they cannot be gated. The difference between guarded areas and gated and guarded areas lies in the fact that if the area is guarded, access is merely regulated. If the area is gated and guarded, then there will erection of fences and the sorts which can obstruct roads. This is why areas with public roads are only allowed to be guarded.
However, many of us still get confused over which security measures are allowed for public areas. The best example of this would be the fact that boom gates which are operated by access cards are actually against MBPJ’s guidelines. This leads us to our final point of…
If you don’t know it, just ask your local council
If you are unsure about what guidelines your local authorities would have, it is always best to ring them up and ask. It is much better for you to ask them and make sure that you get all the proper permissions before erecting barriers as illegal barriers which get torn down will just end up wasting the residents’ money and leave you guys in a limbo. Aside from that, it is important to note that even if you have procured permission from the relevant authorities, you can never restrict someone’s access into a public area or restrict their access to use the public roads.
We will discuss the issue of demanding ICs and licences in a separate article but as a teaser...requesting for ICs is illegal. At the end of the day, while we all appreciate enhanced security and a sound sleep at night, whatever security system that is implemented should not fall foul of the law nor infringe upon another person’s rights.
AskLegal.my
by Denise C
https://asklegal.my/p/neighbourhood-security-guards-registration-block-roads-malaysia
The security guard then demands for your IC/licence and explains that the residents in the area have decided to implement certain security measures and only residents and registered visitors can enter the housing area. Angry over losing your favourite shortcut home, two questions pop into your head:
Can they block off the roads?
Can they demand for our IC or licence for registration purposes?
These also happen to be the most-asked questions every time we publish something related to housing or security but since they involve different areas of the law, this article will cover the legalities surrounding the first question while the IC issue will be covered in a separate article.
What is the difference between condominiums and landed property?
To be more accurate, the difference lies in the title to your property. Land titles for residential areas in Malaysia are divided into strata and non-strata (known as individual titles). Typically, strata titles are for condominiums, apartments, and certain landed properties. The main defining feature for strata properties is not how high it is built but rather owners of strata properties will jointly own what is known as common properties. These are facilities that is provided for by the developer and managed by the management committee and they are things such as roads, gyms and swimming pools.
On the other hand, non-strata (individual) titles are for landed properties alone. The owners of such properties only own the land that their house is situated on and any other facilities that may be in the area, such as roads, and parks, will be public property under the management of the local authorities.
Only strata properties can legally block roads
For strata titles, having guards and boom gates is less of an issue because for strata properties, you are not only the owner of your property, you are also the joint owner of all the common facilities provided for you in the development. This means that anything within the development is essentially private property and is managed by the developers themselves or the management committee.
Since it is private property, the developers are allowed to set up their own gated communities by putting in an application to the relevant authorities. This was allowed after the 2007 amendment to the 1985 Strata Titles Act.
For example, in Selangor, in order to establish a gated and guarded community (“GACOS”), the developer must fulfil certain guidelines laid down by the Selangor government. We don’t have a link to the guidelines and they are pretty long to reproduce here but just know that when it comes to strata properties (ranging from condominiums to exclusive townships), the developers must seek the approval of the authority before creating a GACOS community.
The point of contention for many arises when the owners of landed properties with individual titles try to set up their own barriers and employ their guards. This is especially true for older, non-GACOS developments. To put it simply, older neighbourhoods usually don’t fall under the GACOS scheme which only came into existence in the 2000s.
As these owners merely own the land their unit is situated on, everything else around them is considered public property such as the roads, drainage systems, and parks. Given their public status, you might not be surprised to learn that…
It’s actually “illegal” for non-strata properties to block roads
Under section 46(1)(a) and (b) of the Street, Drainage, and Building Act 1974, it is an offence for anyone to erect or maintain any obstruction or cover any open drain:
“(1) Any person who—
(a) builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place;
(b) without the prior written permission of the local authority covers over or obstructs any open drain* or aqueduct along the side of any street...”
Before you go driving around and refusing to stop for the guards, security concerns have created an understanding that such non-GACOS neighbourhoods could be converted into guarded communities if the Resident’s Association (“RA”) applies for permission from their local authorities. Whether or not their application will be approved depends on whether they fulfil the guidelines given by the Ministry of Urban Wellbeing, Housing, and Local Government. One of the pre-requisites for putting in such an application is that the RA must get at least 85% consent from the residents, though the local authority can accept a lower percentage in some cases.
However, the problem with this is two-fold. The first is that some of the Resident’s Association will not apply for permission and second, guidelines don’t have the force of law. This created some confusion and strife in certain communities and the municipal authorities would come and demolish barricades which were built illegally or when they failed to obtain the minimum consent from the residents.
While the law has been clarified by the highest court in our country, it is clear that many RAs are still not complying with the guidelines given. According to DBKL, from 2011 to 2017, 158 RAs in KL implemented the guarded communities but only 65 applications were approved by DBKL. This showed that many security schemes are operating illegally and this became a thorn to users of the public areas.
Another important point to note is this, while such residential areas can be guarded, they cannot be gated. The difference between guarded areas and gated and guarded areas lies in the fact that if the area is guarded, access is merely regulated. If the area is gated and guarded, then there will erection of fences and the sorts which can obstruct roads. This is why areas with public roads are only allowed to be guarded.
However, many of us still get confused over which security measures are allowed for public areas. The best example of this would be the fact that boom gates which are operated by access cards are actually against MBPJ’s guidelines. This leads us to our final point of…
If you don’t know it, just ask your local council
If you are unsure about what guidelines your local authorities would have, it is always best to ring them up and ask. It is much better for you to ask them and make sure that you get all the proper permissions before erecting barriers as illegal barriers which get torn down will just end up wasting the residents’ money and leave you guys in a limbo. Aside from that, it is important to note that even if you have procured permission from the relevant authorities, you can never restrict someone’s access into a public area or restrict their access to use the public roads.
We will discuss the issue of demanding ICs and licences in a separate article but as a teaser...requesting for ICs is illegal. At the end of the day, while we all appreciate enhanced security and a sound sleep at night, whatever security system that is implemented should not fall foul of the law nor infringe upon another person’s rights.
AskLegal.my
by Denise C
https://asklegal.my/p/neighbourhood-security-guards-registration-block-roads-malaysia
**************
Back in 2007, a circular by the *Ministry of Home Affairs (MOHA), addressed this issue, in regards to the guidelines for identification of visitors entering premises such as condominiums, residential areas, and fenced communities nationwide (that are under "private property"). *Btw, it is illegal to ask for identification of visitors entering "public property" including informal GnG. (An informal GnG residence is not a "private property").
It was stated that only a registration officer, police officer, customs officer, military officer or other officers authorised by the National Registration Department (JPN) director-general, can conduct checks on the identity of a person and request for identification, in accordance with Rule 7 of the National Registration Regulation 1990.
Additionally, National Registration Act 1959 (Act 78) and the National Registration Regulations 1990 (Amendment 2007), under Regulation 8, states that only an authorised personnel may require visitors to show them their MyKad for identity verification. *(Fyi, a private security guard is not an authorised personnel from the government)
In fact, a person who unlawfully keeps another person's MyKad can be charged under Regulation 25 of the National Registration Act.
Despite it being completely illegal, some people still give in to these requests for sensitive, important documents such as MyKad
It is argued that it will be difficult to get things done if a visitor refuses to give a personal document as they will not be allowed to pass through the security check point and get to their desired destination.
Many others have voiced their objection to this practice, only to hear from the security personnel, saying that they are "only doing their job" and that there was no way to win the argument.
Eventually, people comply just because they "do not want any trouble" or to complicate things.
The practice of handing out an identification document to security guards is illegal and it poses the risk of forgery or misuse. For those who think that it's a good security measure, it is not. It is not foolproof as there were many cases whereby gangs and criminals use forged or stolen identity cards to target the GnG communities.
It was stated that only a registration officer, police officer, customs officer, military officer or other officers authorised by the National Registration Department (JPN) director-general, can conduct checks on the identity of a person and request for identification, in accordance with Rule 7 of the National Registration Regulation 1990.
Additionally, National Registration Act 1959 (Act 78) and the National Registration Regulations 1990 (Amendment 2007), under Regulation 8, states that only an authorised personnel may require visitors to show them their MyKad for identity verification. *(Fyi, a private security guard is not an authorised personnel from the government)
In fact, a person who unlawfully keeps another person's MyKad can be charged under Regulation 25 of the National Registration Act.
Despite it being completely illegal, some people still give in to these requests for sensitive, important documents such as MyKad
It is argued that it will be difficult to get things done if a visitor refuses to give a personal document as they will not be allowed to pass through the security check point and get to their desired destination.
Many others have voiced their objection to this practice, only to hear from the security personnel, saying that they are "only doing their job" and that there was no way to win the argument.
Eventually, people comply just because they "do not want any trouble" or to complicate things.
The practice of handing out an identification document to security guards is illegal and it poses the risk of forgery or misuse. For those who think that it's a good security measure, it is not. It is not foolproof as there were many cases whereby gangs and criminals use forged or stolen identity cards to target the GnG communities.
Licensed security guards on duty at "formal gated communities" have the right to ask visitors for identification.
However, security guards at "informal gated communities" do not. In the first place they have no right to block anyone from access to any "public property" residences.
Recently, the residents associations (RAs) in Shah Alam are being subjected to the guidelines by the Shah Alam City Council (MBSA) for gated-and-guarded (G&G) scheme. The Star Online reported that the guidelines were amended to streamline the process and avoid confusion.
Here are some of the highlights of the new guidelines:
1. RAs must get consent from residents (100% approval) to set up automated gates and the access card system.
2. Security guards are not allowed to stop anyone from moving in or out of public residences.
3. Security guards are not allowed to ask for anyone's MyKad or even take a photograph of it at informal gated communities (public property or individual title residence).
Recently, the residents associations (RAs) in Shah Alam are being subjected to the guidelines by the Shah Alam City Council (MBSA) for gated-and-guarded (G&G) scheme. The Star Online reported that the guidelines were amended to streamline the process and avoid confusion.
Here are some of the highlights of the new guidelines:
1. RAs must get consent from residents (100% approval) to set up automated gates and the access card system.
2. Security guards are not allowed to stop anyone from moving in or out of public residences.
3. Security guards are not allowed to ask for anyone's MyKad or even take a photograph of it at informal gated communities (public property or individual title residence).
4. Security guards on duty are allowed to record details of any visitor's MyKad or driving licence only at formal gated and guarded community (private property or strata residence).
A citizen residing in Petaling Jaya wrote in an open letter that was published on The Star, saying that other local city councils such as Petaling Jaya City Council (MBPJ) should take heed and emulate MBSA's efforts in tackling this tricky issue.
The writer said that the current landscape and process at G&G housing areas has made it extremely tedious for non-residents to move around the surrounding neighbourhoods.
It was said that the new stipulations, aimed at establishing orderliness and greater security and convenience for residents and visitors, are welcomed in a step forward towards the development of the country.
"I am sure this may have annoyed some but there must be the rule of law and the MBSA puts it quite clearly what must be complied with."
"I ask those wanting their neighbourhood gated and guarded, how they would feel when they are being asked for their identity card or stopped when visiting another housing area?"
Source: says.com/lifestyle
Original article by: Tang Ruxyn
A citizen residing in Petaling Jaya wrote in an open letter that was published on The Star, saying that other local city councils such as Petaling Jaya City Council (MBPJ) should take heed and emulate MBSA's efforts in tackling this tricky issue.
The writer said that the current landscape and process at G&G housing areas has made it extremely tedious for non-residents to move around the surrounding neighbourhoods.
It was said that the new stipulations, aimed at establishing orderliness and greater security and convenience for residents and visitors, are welcomed in a step forward towards the development of the country.
"I am sure this may have annoyed some but there must be the rule of law and the MBSA puts it quite clearly what must be complied with."
"I ask those wanting their neighbourhood gated and guarded, how they would feel when they are being asked for their identity card or stopped when visiting another housing area?"
Source: says.com/lifestyle
Original article by: Tang Ruxyn
