KUALA LUMPUR, Jan 10 ― Malaysian law allows the authorities to legally listen in and record phone conversations if approved for investigations, lawyers said today following an explosive reveal yesterday of alleged secretly-recorded phone calls in 2016 involving former prime minister Datuk Seri Najib Razak.
The lawyers also said that it is not illegal for Malaysian Anti-Corruption Commission (MACC) to have made public those alleged recordings of Najib's phone conversations at this point in time, before investigations on the nine audio clips are complete.
Is it legal to record phone conversations in Malaysia?
Lawyer Syahredzan Johan said that the general rule is that police do have powers given by various laws ― including Section 116C of the Criminal Procedure Code ― to intercept, listen and record conversations provided the public prosecutor has given authorisation.
“This authorisation is premised on whether the public prosecutor thinks that that particular conversation would reveal information about whether a crime is being committed,” he said.
But as for the alleged Najib phone recordings, Syahredzan said it would be difficult for now to argue whether it was done legally or illegally, saying: “No one knows how these conversations were recorded, MACC who revealed them to the public said they were given to MACC anonymously so the legality of those phone conversations is certainly a question that at this point in time no one can answer.”
The MACC yesterday said it had received the nine audio clips after New Year's Day this year, declining to elaborate on how the clips were received but also confirmed that it was not obtained via an interview with the provider of the recordings.
Constitutional lawyer Surendra Ananth similarly said that laws such as Section 116C of the CPC allows for the recording of such conversations if approved by the public prosecutor and if it is relation to a commission of an offence, but said whether such phone tapping is consistent with human rights is a different issue.
Former Malaysian Bar president Ragunath Kesavan said the alleged Najib recordings would be legal if carried out by enforcement agencies under proper authorisation and amid ongoing investigations, but would be illegal if the phone tapping was done by private parties.
Can and should MACC have publicly disclosed the Najib tapes?
Syahredzan believes that the alleged Najib phone recordings would not be used in or have an impact on any ongoing 1Malaysia Development Berhad-linked (1MDB) trials that Najib is facing in courts now, as they were linked to events that occurred after the alleged offences in these corruption trials.
“In my opinion, I do not see how releasing those tapes would be unlawful or illegal.
“There have been people who say that is sub judice, but if we look at those recordings, if you listen to it, you can see that they were actually after-the-fact, meaning after the alleged crimes have already occurred. So it is fallout to the revelations that happened in 2015, 2016 and doesn't really pertain to when those so-called illegal transactions took place.
“So I do not see how they can jeopardise or interfere with ongoing trials, nor will it in fact support the prosecution's case in those cases,” he said, suggesting that those alleged tapes may instead reveal or point to new alleged crimes that would have to be considered by the public prosecutor.
Surendra said there is “no law prohibiting” the MACC from making public the recordings amid Najib's ongoing trials and when investigations on the recordings are yet to be completed.
“The issue is whether it has prejudiced the accused rights to a fair trial. This is a grey area with different views. My personal opinion is that it doesn’t.
“We do not have a jury system. The case will be decided by a High Court judge who is expected to decide the case on the merits without regard to public opinion or media reports. So I don’t think the sub judice point applies here,” he said.
“However, although in my view not illegal, I’m not sure if there was a need on releasing the recordings to the public. It is indeed a public interest case but the evidence would have come out once the case goes to trial anyway,” Surendra added.
Ragunath said there are various provisions in Malaysian law allowing phone tapping and that such actions obviously have to be done in compliance with the law.
Ragunath argued however that it is “highly unusual” and “highly improper” for an enforcement agency to publicly disclose such “evidence” ahead of full investigations, saying that this “might seriously compromise investigations and allow parties to destroy or impede investigations”.
“That is why enforcement agencies require strict compliance with confidentiality [of] identity of witnesses and most importantly evidence,” he said, stressing the need to always ensure that investigations are “not tainted” and to “allow the full due process of law to take place”.
Ragunath noted for example that the inspector-general of police had asked the public to allow the police to complete investigations on the sex video scandal allegedly linked to minister Datuk Seri Azmin Ali without interference, and that the top cop had highly criticised the public sharing of the alleged videos to the extent that the investigations focused on those responsible for the “recording”.
Ragunath agreed that the release of the alleged Najib recordings now could result in a possibility of contempt of court, sub judice, prejudice or jeopardising the ongoing Najib trials depending on the evidence before the courts at the moment, saying: “That is why it must always be paramount that investigations remain confidential and only produced in court when someone is charged.”
“Otherwise all kinds of speculation arises and there could be serious concerns relating to sub judice taking into consideration the warning by the trial judge to Najib on sub judice which obviously also applies to the prosecution,” he said, adding that such public release is only going to further delay proceedings and arguing that investigations should be completed first before such materials are produced in court.
He also agreed with former veteran newsman Datuk A. Kadir Jasin's comment that MACC's credibility could be compromised, arguing that the release of the recordings at this point may be seen as a “political act” and put the ability of agencies to be independent and to adhere to the rule of law in question.
Can the Najib recordings be used in court?
Syahredzan said that the recordings could be used for any new charges that are brought in court, but said the prosecution would face the challenge of proving that these tapes are authentic or genuine, as well as proving who is the maker of those tapes, and also to prove the voices in the tapes belong to the claimed individuals.
As to whether it matters if the phone recordings were done legally, Syahredzan said: “As a general rule, in Malaysia, evidence which is obtained improperly or not through legal manner is still admissible in court, but of course subject to proof which goes back to what I earlier said about difficulties prosecution have in proving authenticity of those tapes, the maker or maker of those tapes, and persons in those tapes.”
Surendra said the recordings could be used in court even if illegally obtained, but said the defence can challenge its authenticity or admissibility as evidence.
“The case law here as it stands is that as long as it's relevant, it should be admissible regardless of how it was obtained. The accused is free to file a separate suit against the relevant parties on any harm caused in obtaining the evidence illegally,” he said.
He said that those named as allegedly being part of the phone conversations such as Najib could possibly sue for defamation or breach of statutory duty if they could argue that there is a duty imposed by law to not reveal investigation material.
Najib’s lawyer Tan Sri Muhammad Shafee Abdullah yesterday said that his client’s legal team may take legal action against MACC over the public disclosure of recordings amid Najib’s ongoing trials.
Ragunath said whether the alleged recordings could be used in court would be subject to rules of evidence and their relevance to the case.
Yesterday, the Malaysian Bar had criticised the move as improper.
Its president Abdul Fareed Abdul Gafoor said the broadcasting live of recorded telephone conversations by the MACC is unprecedented, and will invite trial by media even before investigations are carried out.
