ENFORCEMENT agencies are allowed to tap the phones of any Malaysian, including VVIP, if they suspect that a crime is being committed, said lawyers.
But for the wiretaps to be used as evidence, their veracity as a recording must first be determined in court, they told The Malaysian Insight.
They were commenting on the audio recordings released by the Malaysian Anti-Corruption Commission (MACC) yesterday that uncovered a conspiracy to manipulate high-level government information on the 1Malaysia Development Bhd scandal in 2016.
Audio recordings of phone calls between then prime minister Najib Razak and Dzulkifli Ahmad (then senior deputy public prosecutor in the Attorney-General’s Chambers) and between Najib and his wife, Rosmah Mansor, were played out to the media.
There were also conversations between Najib and foreign leaders.
MACC chief Latheefa Koya said the recordings showed a clear case of abuse of power, conspiracy, fabrication of false evidence and the leaking of state secrets. She added that the audio recordings will be handed over to the police for investigation.
The lawyers said because the recordings were first released to the public instead of being used in court as evidence, those implicated can sue the MACC for possible defamation.
Lawyer Surendra Ananth said Section 116C of the Criminal Penal Code and Section 43 of MACC Act 2009 allow for the interception of communications in relation to the commission of an offence.
According to Section 116C, the public prosecutor can require a certain service provider to intercept and retain a specified communication if he considers that communication to contain information relating to an offence.
The same section also allows the public prosecutor to authorise a police officer to enter any premises to install devices to intercept such communications.
Under the current law, wiretaps can be performed even on a sitting prime minister, said Surendra.
The law also does not expressively prohibit agencies, such as the MACC, from releasing the recordings to the public instead of using them in court as evidence first, he said.
“My personal view is that it doesn’t. We don’t have a jury system. The case will be decided by a single judge who is expected to put aside what is out in the media and public sentiment. There is also a clear public interest dimension for this case.”
Proving veracity
Lawyer Syahredzan Johan, meanwhile, said it was the Najib administration itself that amended laws to allow for intercepting and recording of private conversations.
“You know what’s ironic? It was Najib’s government who introduced amendments to the CPC to allow for interception, listening and recording of conversations in 2012,” Syahredzan said in a tweet.
Another lawyer Lim Jiet Wei said there is nothing to prevent the recordings from being used as evidence in court in fresh charges against the individuals concerned or in current cases.
Najib is currently facing three trials for a multitude of charges for fraud, abuse of power and money-laundering in relation to billions siphoned off from 1MBD.
“There is no law that prohibits evidence to be adduced in court even though it was revealed to the media beforehand,” said Lim.
But before that happens, the MACC must first prove that it is indeed a genuine wiretap of the individuals concerned and not a fabrication, said lawyer Hasnal Rezua Merican.
“When investigation agencies record a conversation, there must be a brief introduction by the officer doing the recording, the date of the recording, the number of the phone line and who is being tapped,” said Hasnal.
“The context must be set first otherwise the recording itself can be construed as hearsay. MACC must prove these legal tests before it can be used as evidence.”
Hasnal also questioned the rationale for releasing the recordings now, four years after they were taken.
“Why release to the public now instead of using it in court? People are suspicious of the MACC’s intentions.”
Najib has expressed similar sentiments and both he and Rosmah are leaving it to their lawyers to look into the legality of MACC’s press conference.
Surenda added that Najib and the individuals implicated in the recordings can sue the MACC.
“They can do so for potential defamation and breach of statutory duty, and perhaps breach of certain constitutional rights.” – January 9, 2020.
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Comments
There must be a reason. Should not these tapes be part of proceedings in court? Can the MACC have a conference and play all these tapes? Very transparent. Why this selective transparency?
What about the religious people who were disappeared-why dont we have all the evidence made open to the public.
I am very shocked why the Government is exposing this information. Was the authenticity of the tapes verified, was it altered. I strongly believe the government has thrown this in so the the public's attention will be distracted from the REAL ISSUES troubling our nation. The need to find a new replacement for the most important job-Minister of Education. Let us not take our eye off the ball. I dont trust a government that is selective on what is transparent or not. Tell us who took the money from Najib where the MACC wants back-make available the list to the public...all UMNO, and present Bersatu members ( ex-UMNO).
This is sensational news-keep you eye on what's happening, this is a distraction!~
Posted 6 years ago by Dax Muhammed · Reply
Posted 6 years ago by Tanahair Ku · Reply
Posted 6 years ago by Malaysia New hope · Reply
Disclose the recording to the public.
I refer to s65 of MACC Act
perlindungan pemberi maklumat dan maklumat
65. (1) Tertakluk kepada subseksyen (2), jika apa-apa aduan yang dibuat oleh seseorang pegawai Suruhanjaya menyatakan bahawa aduan itu dibuat berbangkit daripada maklumat yang diterima oleh pegawai yang membuat aduan itu, maklumat yang disebut dalam aduan itu dan identiti orang yang daripadanya maklumat itu diterima hendaklah menjadi rahsia antara pegawai yang membuat aduan itu dengan orang yang memberikan maklumat itu, dan segala-gala yang terkandung dalam maklumat itu, identiti orang yang memberikan maklumat itu dan segala hal keadaan lain yang berhubungan dengan maklumat itu, termasuk tempat maklumat itu diberikan, tidak boleh didedahkan atau diperintahkan atau dikehendaki supaya didedahkan dalam mana-mana prosiding sivil, jenayah atau yang lain dalam mana-mana mahkamah, tribunal atau pihak berkuasa lain.
Thats it
Posted 6 years ago by Roy Tan · Reply
Posted 6 years ago by Mike Mok · Reply
Posted 6 years ago by Joseph Muniandy · Reply
Posted 6 years ago by Joseph Muniandy · Reply