Can security guards ask for your MyKad or Driving License (even just for recording purposes only)?
There are a lot of confusion when it comes to this "GnG" subject. This lack of clarity and knowledge by the communities have been used by unscrupulous RAs to bully its non-paying residents and the surrounding communities.
When we want to talk about this subject, we need to define first whether we are referring to a formal GC scheme or an informal "GC" scheme? They are both very different and people should know the differences.
Due to the lack of understanding and awareness by the public, the RAs have been taking advantage of the situation to coerce residents to sign up their bogus scheme by flouting the guidelines and breaking the laws.
Regulation 7 of the Peraturan-Peraturan Pendaftaran Kebangsaan 1990 clearly states that security guards (or any persons) are not allowed to conduct checks on your identity, let alone request for any kind of identification documents.
Regulation 7 also explicitly states that only certain officers are allowed to inspect the identity of a person and request the person to produce his/her MyKad for inspection. These officers include:
- registration officers (of the National Registration Department of Malaysia or JPN)
- police officers (PDRM)
- customs officers/ immigration officers
- members of the Armed Forces on duty
- public officers authorized by the Director General
"Informal Gated Community" schemes that are operated by Residents Associations (RA) in non-private housing areas are not legal gated communities at all. Actually, these so-called "GnG" schemes implemented by RAs are against the laws and guidelines.
What your RA won't tell you :-
- That it is illegal to block public roads in residential areas (only allowed in private property /residences)
- That it is an offense for security guards to ask for I.C. or driving license even for recording purposes only (only allowed in strata or private GC residences)
- That auto access card system is prohibited and illegal (only legal in strata and/or formal GC residences)
- That they have no right to stop non-participating residents or any law-abiding citizens access
- That rightfully, they can only apply for a Guarded Neighbourhood GN scheme (classified as an Informal GC scheme)
- That they are required to put up a Notice Board containing all relevant information (please refer below guidelines by one of the local councils)
- If they have obtained all the necessary requirements & approvals from the relevant authorities
- That all their security guards have license and have undergone all checks, tests and other requirements from KDN
- How much money they are making every year from operating these schemes
- That they have their own personal selfish agendas to fulfill and are profit driven
- How lucrative is this industry and how easy it is for them to bs the residents
- That many residents have dropped/opted out of the scheme along the way and they no longer have enough consensus to operate
- That their GN scheme approval is actually on a temporary basis
- Not only is their scheme unlawful, it is also discouraged by the government and is actually against the National Unity Blueprint
- That there are other neighborhood watch schemes such as Rukun Tetangga, Skim Rondaan Sukarela SRS and Community Policing CP that don't cost any monthly fee at all.
- Yes... you can guess a few more (or you can read about them from the media)
However, all formal gated communities that are managed by Management Corporation (MC) or Joint Management Body (JMB), are legal GnG schemes protected and bound by the Strata Title Act 1985 and the Strata Management Act 2013.
Therefore, only formal gated communities have the right to block roads and demand visitors for their MyKad or Driving License. So, only licensed security guards on duty at formal gated communities can ask for your MyKad or Driving License for recording purposes only (and even so, they have no right to retain/hold your MyKad or driving license - Regulation 8A)
This is as clear as it can get... hope this helps!
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The residents and RA must know the difference between a "formal gated community" (private property) vs an "informal gated community" (public property) - so that everyone knows what they can and cannot do when setting up such schemes in their neighborhood. Do not flout the laws as the neighborhood does not belong to the RA.
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First and foremost, gaining entry into a "private property" such as a formal gated community or condominium... is different from gaining entry to a "public property" such as an informal GnG residence. 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.
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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
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Sumber Rujukan: MPKLANG - manual garis panduan komuniti berpagar & komuniti berpengawal di kawasan MPKlang. (Terima kasih & Penghargaan kpd MPKlang)
