MACC did right in making recordings public
Published on: Sunday, January 19, 2020
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THE recent disclosure of a clutch of videos by Malaysian Anti-Corruption Commission (MACC) chief Latheefa Koya has predictably attracted wide public comments. 

Concerns raised include such issues as the right to privacy and right of an accused to a fair trial – in short, issues that deal with human rights, which are within the remit of the National Human Rights Society (Hakam).

Two matters are of direct relevance; firstly, the legality of the disclosure and secondly, the issue of transparency.

On legality, the MACC is invested with the power to receive complaints and pursue investigations. 

It can then forward the papers to the relevant authority for further action, which could be to further the investigations or prosecute any alleged offenders.

In this case, it is obvious that MACC had embarked on its own investigations. For example, it confirmed the authenticity of the recordings as well as the actors. 

It also made a preliminary assessment that the contents had potentially violated various laws, including the Official Secrets Act, abuse of power, subverting the course of justice and corruption.

Some involve its jurisdiction, others that of the police. 

Hence, MACC passed the papers on to the police as well to continue investigations for matters within their scope. Here, the MACC acted squarely within its statutory powers. 

On the issue of public disclosure, some say there should not have been any public airing of the recordings and that the MACC should abide by the outcome of the investigations and present the video evidence in court if anyone is charged.

The issue then is whether this disclosure by the relevant authority is wrong in law.

It is not unusual for the disclosure of evidence in relation to ongoing investigations by the relevant authorities even before investigations are completed and any charges levied. 

For example, the United States Department of Justice publicly outlined in great detail the facts and evidence in relation to the 1MDB money laundering matter before any action was instituted.

Granted that this is not normally done, but we are dealing with matters of grave public concern involving a person who holds a position of public trust. He is accountable to the country and its people. Any breach or compromise of that trust must necessarily be of immediate public concern and interest.

Such information ought not to be kept under wraps, else it may suffer the fate of the earlier investigations on the 1MDB scandal, which, as we now know, were scuttled by the investigating authorities at the behest of high authority. The then head of MACC was, if these recordings are to be believed and proved, complicit, as were many others, essentially to stultify action against wrongdoing. 

But for the change of government, all alleged high crimes would have been dead and buried.

Surely that is not what we should wish to revert to – opaque transparency that leads to subversion of the course of justice.

This case must necessarily be distinguished from normal crimes, even heinous ones such as murder and the like, which are essentially between private persons.

But in cases involving the wider public interest (head of government, for example), different considerations apply.

Examples abound throughout the world. In the US, in three recent cases where the president was alleged to have been involved in illegal activity, the entire facts of the investigations as they proceeded were laid bare to the public.

Recall the Watergate scandal involving illegal wire-tapping at the behest of President Richard Nixon (which led to his resignation), the Monica Lewinsky sex scandal involving President William Clinton, and currently the ongoing disclosure of allegations against President Donald Trump regarding his alleged conduct pertaining to trading favours with the Ukraine president.

Nearer home, the public has routinely demanded answers from the investigating authorities on the disappearance of Pastor Raymond Koh, Amri Che Mat, and Joshua Helmi and his wife Ruth.

The alleged wrongdoings are huge. First, subverting the course of justice; seeking to cover up a crime by manipulated contrivances such as creating evidence to justify an alleged wrong is a grave crime. It is an offence separate and distinct from the ongoing 1MDB or SRC criminal prosecutions.

It works like this. An accused seeks to tamper or subvert witnesses or evidence in relation to a case by asking them to lie or create false documentation. This is after a prosecution has been commenced. Law reports are studded with a litany of successful prosecutions in such cases.

Then there is a case of seeking favours from the head of another country. Favours given must be returned. This could well impact the country’s sovereignty.

It is in this context that the threat to national security was raised by Latheefa. Note that Trump’s impeachment proceedings were commenced precisely on this national security concern.

Is it sub judice? As indicated, the facts disclose offences that are distinct from the ongoing prosecutions, hence no question of sub judice arises. In any event, sub judice arises when disclosure will prejudice the mind of the judge. 

Our judges are trained to decide cases on the facts as adduced in court. Any failure to evaluate the evidence and consider with cogent reasons the evidence presented by an accused is routinely corrected by our appellate courts.

Is it contempt? Contempt happens when one interferes or jeopardises the administration of justice. For the reasons aforesaid, there is hardly any basis for contempt. Indeed, the disclosures reveal an attempt to interfere with the due administration of justice.

Is reliance on the recordings legal? Quite obviously, the recordings have been provided by a whistleblower. Any person who discloses any alleged crime to the authorities such as the police or MACC is protected by the Whistleblower Protection Act 2010. He or she is entitled to confidentiality and is also protected against any retaliatory action. Latheefa is hence justified in not disclosing the source of the recordings as yet.

Interestingly, Trump’s efforts to get the name of the whistleblower who provided recordings of his conversations relating to the Ukrainian president has been consistently refused by the House of Representatives.

Right to privacy is indeed an invaluable right that ought to be protected, although it is noted that there is no such right in the law of tort recognised as yet in Malaysia. In any event, the right to privacy has to yield to the wider public interest in upholding the rule of law.

Right to privacy cannot prevail to prevent the disclosure of a crime. Lorraine Osman’s efforts to prevent the disclosure of evidence (including of monies held in lawyers’ accounts) was rejected by our courts as there is no protection or privilege from disclosure of any communication made in furtherance of any illegal purpose or of a fact showing that any crime or fraud has been committed (AG Hong Kong v Lorraine Osman [1993]).

Significantly, recorded conversations of potential terrorist acts have been relied upon routinely in curbing such acts by almost all functioning democracies. Ultimately, in any prosecution, the accused can question the authenticity of the recordings and the purport of their contents.

Finally, aspersions have been cast on Latheefa’s motive for the disclosure, including a tie-up with a pending by-election. This is a red herring. One should address the legal issues, which Hakam seeks to do with this statement.

It is understandable that concerns have been raised for this rather unusual and dramatic disclosure of the recordings. But given their legality as explained, should we not applaud the MACC for a disclosure of acts that seem to compromise the trust and fiduciary duty placed in our leaders? 

After all, transparency, which leads to accountability, is pivotal to the rule of law.

n National Human Rights Society (Hakam)





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