KUALA LUMPUR — Enforcement agencies are allowed to tap the phones of any Malaysian, including a 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 audio recordings released by the Malaysian Anti-Corruption Commission (MACC) on Wednesday (Jan 8) that uncovered a conspiracy to manipulate high-level government information on the 1Malaysia Development Berhad (1MDB) scandal in 2016.

Recordings of phone calls between then-prime minister Najib Razak and Mr Dzulkifli Ahmad (then-senior deputy public prosecutor in the Attorney-General’s Chambers) and between Mr Najib and his wife Rosmah Mansor were played for the media.

There were also conversations between Mr Najib and foreign leaders.

MACC chief Latheefa Koya said the recordings showed a clear case of abuse of power, conspiracy, fabrication of 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 Mr 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.

“The question is whether it prejudices the accused’s right to a fair trial as it effectively allows for trial by media. This is a grey area,” Mr Surendra 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,” Mr 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.

Mr 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 Mr 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 Mr 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.”

Mr 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.”

Mr Najib has expressed similar sentiments and both he and Ms Rosmah are leaving it to their lawyers to look into the legality of MACC’s press conference.

Mr Surendra added that Mr 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.” THE MALAYSIAN INSIGHT