Disclosure of audio clips by MACC: Legal or not? Statement Dated 11 Jan 2020

Statement published in Malaysiakini

HAKAM Statement on Release of Audio by MACC Dated 11 Jan 2020

The recent disclosure of a clutch of videos by the MACC chief Latheefa Koya has predictably attracted wide public comments. Concerns raised include such issues as the right to privacy, right of an accused to a fair trial. In short, issues that deal with human rights, which are within the remit of this society.

Two matters are of direct relevance. First, the legality of the disclosure. Secondly, the issue of transparency.

Legality

The MACC is invested with the power to receive complaints and pursue investigations. It then can forward the papers to the relevant authority for further action, which could be to further the investigations or to prosecute any alleged offender.

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

It also made a preliminary assessment that the contents had potentially violated various laws: including the Official Secrets Act 1972, abuse of power, subverting the course of justice and corruption. Some involve its jurisdiction; others that of the police. Hence it passed the papers on to the police as well to continue with investigations for matters within their scope. So the MACC acted squarely within its statutory powers.

Public disclosure

Some say that there should not have been any public airing of the tapes. And that the MACC should abide by the outcome of the investigations and present this video evidence in court if anyone is charged.

The issue then is: whether this disclosure by the relevant authority 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 US 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 here we are dealing with matters of grave public concern – involving an erstwhile PM who holds the 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 1MDB scandal investigations. 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 tapes 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 which leads to the subversion of the course of justice.

Not normal crimes

This case must necessarily be distinguished from normal crimes – even heinous ones committed by individuals. Crimes such as murder and the like. These are essentially between private persons.

But in cases involving the wider public interest – involving the head of government, 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 wiretapping at the behest of President Nixon – which led to his resignation. Also, the Monica Lewinsky sex scandal involving president Bill Clinton. Currently, there is the ongoing disclosure of allegations against President Donald Trump regarding his alleged conduct involving 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, Ruth Stepu and Joshua Helmi.

Nature of the alleged wrongdoing

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 spectre of national security was raised by Latheefa. Note that Trump’s impeachment proceedings were commenced precisely on this national security concern.

The disclosure by the DPP seconded to MACC from the AG’s chambers (later made its chief) of ongoing investigations to the alleged wrongdoer compromises the integrity of the MACC and the government.

Latheefa’s public disclosure of these alleged offences now insulates them from any manipulation by anyone. In short, no one can now surreptitiously interfere. The public will be effective gatekeepers.

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.

Disclosing investigations to potential wrongdoers so that they can cover up their tracks; or to solicit documentation to justify money laundering is what strikes at the due administration of justice.

Is reliance on the tapes legal?

Quite obviously, the tapes have been provided by a whistleblower. Any person who discloses any alleged crime to the authorities such as the police or the 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 videos as yet. Interestingly, Trump’s efforts to get the name of the whistleblower who provided tapes of his conversations relating to the Ukranian president has been consistently refused by the House of Representatives.

Right to privacy

Indeed this is 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. The right to privacy cannot prevail to prevent the disclosure of a crime.

Bank Bumiputra Malaysia Berhad (BBMB) founder 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. See AG Hong Kong v Lorraine Osman [1993].

Significantly, taped 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 tapes and the purport of its contents.

Motive

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 this statement seeks to do.

Conclusion

It is understandable that concerns have been raised for this rather unusual and dramatic disclosure of the tapes. But given its legality, as explained, should not we applaud the MACC for disclosing the 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.

 


GURDIAL SINGH NIJAR is the president of the National Human Rights Society (Hakam) and former law lecturer at Universiti Malaya.

HAKAM Applauds AG’s Decision Not To Appeal High Court Ruling That Denial of Bail Under SOSMA is Unconstitutional

HAKAM applauds the Attorney General’s statement today dated 13th December 2019. The Attorney General rightfully observed that Section 13 of SOSMA which denies bail to an accused is:

Pic from the Reuters

(a) unconstitutional as it takes away the judicial power of the Courts which forms the basic structure of our Federal Constitution, as held by our Federal Court in Semenyih Jaya & Indira Gandhi; and
(b) unacceptable because it offends the fundamental concept that an accused is innocent until proven guilty.

HAKAM is particularly encouraged by the Attorney General’s decision not to appeal Justice Nazlan’s decision which rightfully held that Section 13 of SOSMA is unconstitutional.

HAKAM also supports the Attorney General’s observation that the striking down of Section 13 of SOSMA does not mean that there will be jeopardy to public safety – this is because bail can still be denied by a Judge if there is sufficient evidence that the accused poses a risk to the public, as in all other criminal cases.

HAKAM is confident that the Courts in our country will take note of this development and proceed to exercise their discretion to allow bail to accused persons detained under SOSMA, should the circumstances call for it.

HAKAM trusts the wisdom of the Courts to exercise such discretion on bail judiciously in order to strike an appropriate balance between the rights of an accused and public safety.

Finally, HAKAM reiterates its call to the Government to fulfill its manifesto promise of abolishing SOSMA in its entirety.

Human Rights Day 2019 – HAKAM Urges Government to Expedite Pro-Human Rights Reforms

In conjunction with Human Rights Day on 10th December 2019, HAKAM urges the Government to expeditiously fulfill its manifesto promises in respect of human rights reforms.

There is no doubt that the Government has achieved praiseworthy progress on the human rights front. Some of these include:

  • lowering the voting age to 18;
  • automatic voter registration;
  • abolishing the Anti-Fake News Act 2018;
  • amending the Peaceful Assembly Act 2012;
  • creating the environment for a relatively freer press;
  • appointing independent & credible judges to key positions in the Judiciary;
  • tabling SUHAKAM report for debate in Parliament for the first time in 19 years; and
  • establishing a Parliamentary Select Committee on Human Rights & Constitutional Affairs and a Parliamentary Select Committee on Gender Equality & Family Development;

But the Pakatan Harapan Government was elected on 9th May 2018 by an electorate which expects more substantial human rights reforms and cementing of the rule of law. It has been 1 ½ years since the Government was elected into power, yet there is much more that needs to be done.

HAKAM hereby urges the Government to quicken its pace and to steadfastly carry out the following human rights reforms in Malaysia:

  • Establish an effective Independent Police Complaints & Misconduct Commission (IPCMC);
  • Abolish the Security Offences (Special Measures) Act 2012 (SOSMA);
  • Abolish the Prevention of Terrorism Act 2015 (POTA);
  • Abolish the Prevention of Crime Act 1959;
  • Abolish the Sedition Act 1948;
  • Abolish the Printing Presses and Publications Act 1984;
  • Abolish the National Security Council Act 2016;
  • Abolish the death penalty in all forms; and
  • Enact a Freedom of Information Act

There will no doubt be forces which will resist such reforms. But all of these reforms are promises which were made in the Pakatan Harapan manifesto. The Government must be bold and resolute in fulfilling the same.

Rest assured that civil society and many segments of the rakyat will be behind the Government in carrying out such reforms.

Lim Wei Jiet

Secretary-General of HAKAM

Joint Statement: Ensure IPCMC Set Up Without Delay

4 Dec 2019

The undersigned civil society organisations are concerned at the sudden announcement by the government on 3 Dec 2019 that the second reading of the Independent Police Complaints and Misconduct Commission (IPCMC) Bill would be postponed to next year. This is especially concerning since it had already been announced on 2 Dec 2019 that the chair of the Special Select Committee on Bill Considerations YB Ramkarpal Singh would table the motion for the bill to be debated on 3 Dec 2019.

In our view, the formation of the IPCMC is one of the most important reforms in new Malaysia. The need for an independent oversight body focused on improving professional standards of the police and ensuring accountability for any alleged misconduct is a long-standing issue and cannot be put off any longer.

Despite the formation of the Enforcement Agency Integrity Commission (EAIC) 10 years ago, unfortunately, there are still regular reports of alleged police brutality, questionable police shootings and deaths in custody and outright corruption. Importantly, the EAIC does not have the power to initiate disciplinary proceedings against the police, despite findings of misconduct. We have thus seen cases where the EAIC has found serious misconduct such as tampering with diary entries and making false police reports by police officers, but have not seen any corresponding disciplinary action by the police.

The undersigned civil society organisations have participated actively in the consultations that have been held by Minister in the Prime Minister’s Department Datuk Liew Vui Keong together with the Governance, Integrity and Anti-Corruption Commission (GIACC). Although we were disappointed that the bill was not made available for comment before it was presented in Parliament for first reading, we are nevertheless encouraged by the unprecedented level of engagement from the government after that point. We have submitted our oral and written views on how we thought the bill could be improved and brought in line with international best practices.

We were also part of the consultations held by the bipartisan Special Select Committee chaired by YB Ramkarpal Singh, where oral and written submissions were also made. We commend the government and the Special Select Committee for engaging with stakeholders on this issue. We are heartened that some of our submissions have been taken into account in the amendments that have been proposed by the government and by the Special Select Committee.

We hope that the delay is indeed to fine-tune the bill and not due to inordinate pressure against the bill. We note that the police have concerns regarding the commission having disciplinary powers over them. We would like to point out however, that these powers will be exercised not by the Commission directly, but by separate disciplinary boards that will consist of commission members, a representative from the police force and a representative from the Police Force Commission.

We hope that the government will remain true to its manifesto promise to establish the IPCMC without delay and we remain committed to engaging with them and supporting this effort wherever we can.

Endorsing organisations:
1. Suara Rakyat Malaysia (Suaram)
2. Society for the Promotion of Human Rights (Proham)
3. Justice for Sisters
4. Malaysian Action for Justice and Unity (MAJU)
5. Center to Combat Corruption & Cronyism (C4 Center)
6. National Human Rights Society (HAKAM)

[23rd December 2018] TAKE STRONG MEASURES TO CHECK RACIAL DISUNITY

HAKAM views with deep remorse the tragic and untimely death of fireman Adib Mohd Kassim. He paid for his life dearly in the line of his calling. With untold suffering of his fiancé and family.

No doubt it was aggravated by devotees being attacked amidst their prayers. Or the tardiness of the police in quelling the fracas speedily. Yet it is now clear that it was not racially motivated.

HAKAM is concerned that there are some quarters seeking to stir up racial and religious animosity pivoting on his death. This will be a sad taint on Adib’s legacy. For he attended to his duties as a trained fireman professionally – regardless of race or religion.

HAKAM feels it is high time that the Government initiates a concerted policy designed to stop matters from being characterised along ethnic-religious lines in the New Malaysia that we helped so painfully to create. Else every little individual non-ethnic incident can be dressed up as a collective polarising racial issue: be it a road accident involving different races, or this Seafield incident which was essentially a dispute over land between a developer and the occupiers. No doubt it was aggravated by devotees being attacked amidst their prayers. Yet it is now clear that it was not racially motivated.

The subsequent reaction by some politicians may now, perhaps, be seen as insensitive and inappropriate. But this is with the benefit of hindsight. And after the incident.

HAKAM strongly urges the new government to take stock of the situation and act firmly against the few who would – for whatever motive – embark to wreck the unity of Malaysians. And emplace measures to defuse racial characterisation of incidents – with education and awareness and sensitisation programmes – starting from our school children and extending to all sectors and levels of society. To spread cross-communal solidarity. Kicked off perhaps by a nation-wide harmony and reconciliation commission, as suggested by a Minister in the PM’s Department.

That is what we all expect and deserve – from a new government in a New Malaysia.

Gurdial Singh Nijar

President of HAKAM

[2 December 2018] STOP USAGE OF REPRESSIVE LAWS IN ADDRESSING TEMPLE DISPUTE

HAKAM notes with deep concern the Cabinet’s decision today to withdraw the moratorium on the Prevention of Crime Act (POCA), Prevention of Terrorism Act 2015 (POTA), Security Offences (Special Measures) Act 2012 (SOSMA), Sedition Act 1948 and Section 233 of the Communications and Multimedia Act 1998 (CMA) in order for the police to probe recent events surrounding the Sri Maha Mariamman Temple at USJ 25.

HAKAM fully supports the Government’s intention to restore peace & public order, and for those who incite racial hatred & rioting to be punished under the law.

However, the current Government must not emulate the previous administration in using repressive laws to deal with this situation. It was for this reason that Pakatan Harapan’s manifesto promised to abolish these laws. The continued use of these obnoxious laws violate the integrity and credibility of building a New Malaysia distinct from the old.

HAKAM calls on the Government to immediately repudiate its decision to use these repressive laws against suspects. There are sufficient provisions in our laws to deal with this situation.

In particular, POCA and SOSMA gives wide powers for the authorities to detain a person for prolonged periods without trial & provides no judicial oversight. HAKAM believes that the existing provisions for remand of up to 14 days under the Criminal Procedure Code, as well as channeling more resources to the relevant agencies for speedier investigations, are adequate measures to tackle the problem at hand.

Further, the Sedition Act 1948 and Section 233 of the CMA are phrased too arbitrarily & have been opened to abuse many times under the previous regime. HAKAM believes there are existing provisions in the Penal Code to prosecute offenders in these cases, such as Section 298 (uttering words, etc., with deliberate intent to wound the religious feelings of any person), Section 504 (intentional insult with intent to provoke a breach of the peace) and Section 505 (statements conducing to public mischief).

Finally, the usage of POTA is wholly unnecessary considering that the temple fracas has no relation to terrorism.

HAKAM therefore urges the Government to stand firm with its manifesto promises, respect human rights & to uphold the rule of law. Public order & human rights can exist hand-in-hand – and this Government must prove that this is the way for Malaysia to move forward.

Lim Wei Jiet

HAKAM Secretary-General

[23 November 2018] HAKAM REGRETS UNREST CREATED BY PARTIES ON ICERD RATIFICATION & REJECTS CALLS FOR FOREIGN MINISTER’S RESIGNATION

1. HAKAM regrets the decision of the Prime Minister’s Office (PMO) in deciding not to ratify the ICERD. However, HAKAM regrets even more that that this issue has been exploited to generate fear and divisiveness in the country.

2. HAKAM urges the government that this precautionary stance be a temporary measure and would continue to engage stakeholders on this issue to dispel the misconceptions on the ICERD. HAKAM also urges for any further discussions on ICERD be conducted in a civil manner without threats & fear-mongering. The government should revisit its decision and reconsider ratification again in the future.

3. HAKAM further regrets the calls for Dato’ Saifuddin Abdullah to resign in light of these developments. The Foreign Minister has done an admirable job in advocating for Malaysia to ratify an important international human rights treaty.

4. HAKAM will continue to support the government’s vision of a New Malaysia – in creating a fair and just society where everyone has a place under the Malaysian sun.

Lim Wei Jiet

HAKAM Secretary-General

On behalf of the HAKAM Executive Committee

[29 September 2018] HAKAM APPLAUDS TUN MAHATHIR’S COMMITMENT TO RATIFY ALL CORE HUMAN RIGHTS TREATIES IN THE 73RD UN GENERAL ASSEMBLY

1. HAKAM welcomes Prime Minister Tun Mahathir’s commitment to “ratify all remaining core UN instruments related to the protection of human rights” at his speech in the 73rd UN General Assembly yesterday.

2. Tun Mahathir has also promised that the new Malaysia “will firmly espouse the principles promoted by the UN in our international engagements”, which include “the principles of truth, human rights, the rule of law, justice, fairness, responsibility and accountability, as well as sustainability.”

3. HAKAM highly commends the new Malaysia’s principled commitment to human rights at the international stage. In a world threatened by the rise of right-wing nationalism & erosion of civil liberties, the new Malaysia yesterday showed leadership & hope to the other nations on the future of human rights.

4. Nonetheless, HAKAM also takes note of Tun Mahathir’s concern that it “will not be easy for us because Malaysia is multi-ethnic, multireligious, multicultural and multilingual” and that the Government will “accord space and time for all to deliberate and to decide freely based on democracy.”

5. Whilst consultation with all stakeholders is a must, HAKAM takes the view that the presence of a multi-ethnic, multi-religious & multi-cultural society should not be a barrier to a country’s responsibility to uphold human rights. Human rights are innate, inalienable & universal in nature. Religion, race & culture should never be used as a justification for condoning discrimination, injustice & suffering. Everyone deserves to be shielded by & to thrive underneath the over-arching umbrella of human rights.

6. In this respect, HAKAM urges the new Malaysian Government to take immediate steps to do the following:

6.1. Ratify, without reservations, all key international human rights conventions, which include:

(i) The International Covenant on Civil and Political Rights (ICCPR);

(ii) The International Covenant on Economic, Social and Cultural Rights (ICESCR);

(iii) The International Convention on the Elimination of All Forms of Racial Discrimination;

(iv) The UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment; 

(v) The International Convention on the Protection of Migrant Workers and Members of their Families; 

(vi) The International Convention for the Protection of All Persons from Enforced Disappearance; and

(vii) The Convention Relating to the Status of Refugees.

6.2. Remove all reservations in the international human rights conventions which it has ratified, which include:

(i) The Convention on the Rights of the Child (CRC);

(ii) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and

(iii) The Convention on the Rights of Persons with Disabilities (CRPD).

7. The Malaysian Government is not alone in this journey. As long as Malaysia is consistent with its recent stance in the 73rd UN General Assembly, HAKAM believes that civil society organisations will wholeheartedly support this endeavor and provide all the assistance they can.

Lim Wei Jiet

HAKAM Secretary-General

On behalf of the HAKAM Executive Committee

[9 September 2018] PH LAWMAKERS MUST STOP CALLS TO USE SEDITION ACT

HAKAM notes with grave concern the recent call for the authorities to investigate former IGP Mohammed Hanif Omar under the Sedition Act – in relation to an allegation that Lim Kit Siang had pushed for the division of peninsula Malaysia into two after the 1969 race riots.

This is inconsistent with civil society’s longstanding position that this archaic act must be repealed in its entirety. The Sedition Act is arbitrary, anti-democratic & has been abused by the previous administration on many occasions.

Further, there are sufficient existing laws and measures to ensure that the fundamental constitutional rights of all citizens are scrupulously protected. Lim Kit Siang himself is pursuing a civil remedy vide a defamation action against the former IGP.

This recent call also clearly violates Pakatan Harapan’s own manifesto to revoke the Sedition Act, which was a critical tool of the British colonial authorities to deal with freedom fighters like Ahmad Boestamam & India’s Mahatma Gandhi.

Pertinently, it is also inconsistent with the previous appeals to courts, by the same lawmakers, to adjourn sedition cases pending the Home Ministry’s review & prospect of abolishing the Sedition Act in Parliament. It is thus only right that Pakatan Harapan lawmakers keep true to their words, at all times.

HAKAM reiterates its call for the urgent repeal of the Sedition Act and for a moratorium on all cases pending its repeal in Parliament.

Dr. Gurdial Singh Nijar

HAKAM President

On behalf of the HAKAM Executive Committee

[27 August 2018] ABOLISH THE OSA & ENACT A FREEDOM OF INFORMATION ACT IN ITS PLACE

HAKAM notes with great concern Prime Minister Tun Mahathir Mohamad’s recent comments to maintain the Official Secrets Act 1972 (OSA).

The OSA is an archaic law which grants excessive powers to Ministers & public officers to arbitrarily classify almost any government document as an “official secret”. The punishment for communicating an “official secret” can reach up to 7 years imprisonment, which is severely punitive in nature.

The OSA was regularly abused by the previous government to persecute opposition figures & civil society activists. Notably, former Pandan MP Rafizi Ramli was charged under the OSA for leaking a page of the 1Malaysia Development Bhd (1MDB) audit report.

Maintaining the OSA in its current form runs contrary to the principles of transparency & freedom of information – which directly undermines accountability & good governance. Without adequate access to information of government policies, the citizenry cannot make informed decisions. Lack of informed decisions inevitably lead to incompetent, or worse, corrupt governments.

This is also a breach of Promise 14 of Pakatan Harapan’s manifesto, which states that the new Government would revise the OSA and enact a Freedom of Information Act. Keeping the OSA in our statute books is also inconsistent with Pakatan Harapan’s laudable commitment to instil integrity in governance via the establishment of the Special Cabinet Committee on Anti-Corruption & the Centre on Governance, Integrity and Anti-Corruption (GIACC).

It would also be an anomaly for two Pakatan Harapan state governments – Selangor & Penang – to have freedom of information legislation, yet the federal government chooses to adopt a conflicting position.

HAKAM is aware of the importance of maintaining state secrecy in limited occasions, such as military briefings and Cabinet meetings on the nation’s strategic assets. A Freedom of Information Act can accommodate these valid concerns, yet place freedom of information at the deserving forefront.

HAKAM hereby urges the Government to abolish the OSA and to enact a Freedom of Information Act in its place.

Lim Wei Jiet

HAKAM Secretary-General

On behalf of the HAKAM Executive Committee