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.


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.


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.


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.

Zahid told to respect judicial process on naming out-of-wedlock children

Source: FMT News 

PETALING JAYA: Deputy Prime Minister Ahmad Zahid Hamidi has been told to respect the country’s judicial process instead of making critical remarks against the Court of Appeal’s decision on the naming of Muslim children born out of wedlock.

PKR central committee member Latheefa Koya said the courts should be allowed to decide on the matter impartially on the basis of the law and the Federal Constitution, without unnecessary positions being taken by government leaders on the issue.

“I have never come across a case of an instance of a deputy PM showing such gross disrespect to the judicial process,” she said.

“It is clear Zahid is trying to make political capital out of this case, with the general elections around the corner. It is most unfair as this involves the lives and future of innocent children,” she said in a statement today. Read more

No basis for Zahid’s best police in Asean comment, say lawyers

Source: FMT News 

PETALING JAYA: Human rights lawyers have expressed their disbelief over Deputy Prime Minister Ahmad Zahid Hamidi’s statement yesterday, that an international body had rated the Malaysian police force as the best in Asean.

“Can Zahid tell us which so-called international body said this? (It’s) quite hard to believe,” lawyer Latheefa Koya said in a text message to FMT today.

Zahid, who is also the home minister, did not name the international body which had given the rating, or furnish any other details to back the statement he made at the “Addressing Perception on Safety and Security” forum yesterday. Read more

Government’s Sedition Act appeal to be heard on July 17

Source: FMT News

Apex court will also deliberate whether the 1948 law is valid since the Malaysian Parliament that passes legislation only came into existence in 1957. Pic from FMT News.

Apex court will also deliberate whether the 1948 law is valid since the Malaysian Parliament that passes legislation only came into existence in 1957. Pic from FMT News.

PUTRAJAYA: The Federal Court has fixed July 17 to hear the government’s appeal to set aside a landmark ruling by a lower court declaring Section 3 (3) of the Sedition Act as unconstitutional.

Lawyer Latheefa Koya, appearing for Sri Muda assemblyman Mat Shuhaimi Shafiei, said the date was fixed following case management before deputy registrar Shahrin Jeli Johari.

In November last year, the Court of Appeal, which allowed Mat Shuhaimi’s appeal, said that both intention and the act must be proven by the prosecution to establish a prima face case.

In February, the Federal Court allowed the government’s leave to appeal application without contest.

Latheefa said today, “During the appeal, we will be revisiting the 2015 Federal Court ruling in Azmi Shahrom’s case.”

In October 2015, Universiti Malaya law lecturer Dr Azmi Sharom lost his constitutional challenge against the Sedition Act 1948 and was ordered by the Federal Court to stand trial for issuing an allegedly seditious remark. Read more

Kenapa masih belum ada tangkapan kes Balamurugan, kata peguam

Sumber: FMT News

N Surendran dan Latheefa Koya berkata menteri dalam negeri tidak boleh mendiamkan perkara itu kerana sudah 5 minggu kes itu berlarutan sejak kematian Balamurugan dalam tahanan polis. Gambar dipetik dari FMT News.

N Surendran dan Latheefa Koya berkata menteri dalam negeri tidak boleh mendiamkan perkara itu kerana sudah 5 minggu kes itu berlarutan sejak kematian Balamurugan dalam tahanan polis. Gambar dipetik dari FMT News.

PETALING JAYA: Lima minggu selepas kematian dalam tahanan S Balamurugan, peguam mewakili ahli keluarganya mempersoalkan tiada lagi tangkapan atau pertuduhan dibuat berhubung kes itu.

Dalam satu kenyataan bersama hari ini, peguam N Surendran dan Latheefa Koya mempersoalkan mengapa masih belum ada tindakan walaupun gambar bedah siasat menunjukkan tahap kecederaan Balamurugan.

Peguam itu berkata keputusan bedah siasat kedua yang dijalankan Hospital Kuala Lumpur menunjukkan Balamurugan mengalami beberapa kecederaan di dada, kepala, kaki dan belakang, membuktikan beliau diserang dengan teruk ketika dalam tahanan polis.

Bulan lalu, pegawai polis yang dipercayai terbabit dalam kematiannya dipanggil untuk soal siasat. Bagaimanapun, Ketua Polis Selangor Abdul Samah Mat berkata pegawai terbabit tidak boleh digantung tugas.

“Kami masih menyiasat mereka. Kami tidak boleh menghukum seseorang sebelum siasatan lengkap untuk menentukan jika berlaku sebarang salah laku,” kata Abdul Samah.

Balamurugan, 44, meninggal dunia pada 8 Februari ketika ditahan di balai polis Klang Utara. Dia ditahan pada 6 Februari dan dibawa ke mahkamah bagi mendapatkan perintah reman keesokan harinya. Read more