DATUK Seri Najib Razak was among eight individuals whose voices were recorded in the nine clips spanning 45 minutes released by the Malaysian Anti-Corruption Commission (MACC) last week.

In the clips was information on how the 1MDB/SRC investigation papers were leaked and attempts to cover up the unsavoury connections between 1MDB with Najib and his stepson Riza Aziz.

MACC chief commissioner Latheefa Koya, when releasing the audio clips, said the anti-graft agency was satisfied with the “absolute authenticity” of the recordings.

“There are various issues that arise, including abuse of power, criminal conspiracy, obstruction of justice, compromising of national security and fabrication of false evidence through foreign aid,” said Latheefa.

Najib, on his Facebook page, clarified his request to create a back-dated loan for the funding of Riza’s production house Red Granite Pictures, but did not comment on the authenticity of the clips.

Former MACC chief Tan Sri Dzulkifli Ahmad, who was featured in four of the clips, could not be reached for comment.

The release caused an uproar among lawyer groups, with the Malaysian Bar saying that the release of the clips is “improper” and invites “a trial by the media even before investigations are carried out”.

“Is the release timely?” asks a former High Court justice. “If so, for whom?” he says, referring to the circumstances surrounding the explosive revelation.

It is the first time conversations of a sitting Malaysian prime minister were allegedly wiretapped and released to the public. The bombshell raised interesting questions.

Legal to wiretap, but constitutionality another matter

The recordings contain both international calls and domestic communications between top government officials. If one were to guess, it was done by someone with the capacity and ability to do so — such as any of the local agencies.

Lawyer Syahredzan Johan was quoted as saying that the police do have powers given by various laws, including the Criminal Procedure Code, to intercept, listen to and record conversations with the authorisation of the public prosecutor.

“It was Najib’s government who introduced amendments to the CPC to allow for interception, listening to and recording of communications in 2012,” he was quoted as saying.

But even if the provision is legal, whether it is constitutional is another matter — there is no precedent since the amendment to the CPC was done. “The constitutionality of those provisions has not been challenged in court before,” Syahredzan said.

Mixed views on impact on trials as clip origin unclear

One view is that the ongoing 1MDB trials will not be affected, as the recordings took place after the actions underlined in the trials were committed, between 2009 and early 2015.

Others suggest that Najib’s defence could better prepare their ongoing cases with the release.

Some view the alleged conversations between Najib and top UAE officials as useful for 1MDB in its arbitration against International Petroleum Investment Co (IPIC) because the clips indicate that Abu Dhabi was well aware that there was hanky-panky at a time when billions of dollars went missing in the dealings between 1MDB and UAE state-owned funds.

Because the tip was anonymous, there is no way to ascertain whether due process was followed when the conversations were intercepted as required under Section 90A of the Evidence Act 1950.

Interested parties would need to undertake the long process of seeking forensic experts to authenticate the clip.

Unless the originator surfaces, there is a risk that the recordings could be inadmissible should Dzulkfli be put on trial over his alleged leaking of 1MDB/SRC investigation papers to Najib — or if Najib’s attempt to fabricate a false loan agreement for Riza’s Red Granite is brought to court.

Circumstances of the public release

During the press conference, MACC’s Latheefa said the release was done in the name of public interest. But some lawyers and government officials have questioned the action, citing the need to keep the evidence for use in court.

The leak was reminiscent of a similar incident in 2007 when a leaked video clip showed how senior lawyer V K Lingam had intervened in the judicial appointment process of Malaysian judges in 2002. The V K Lingam clip resulted in the setting-up of a Royal Commission of Inquiry to probe the matter.

“The premise of public interest is a thin line,” one lawyer tells The Edge.

“But keeping the clip out of public knowledge could amount to a cover-up in the public’s opinion, especially when it contains criminal acts.”

There are other circumstances, such as the motive of the person who leaked the audio clip and the timing of the release to coincide with an upcoming by-election.

But the manner and timing of the release aside, the public always has a right to know about its leaders’ misconduct.