Investigators are urged to balance public interest and the right to privacy.
This statement was originally published on CIJ’s Facebook page on 9 January 2020.
The recent release of audio recordings by the Malaysian Anti-Corruption Commission (MACC) raises issues about whether or not communications surveillance is carried out with proper accountability and how such surveillance information is handled by the government authorities.
There are several issues of public interest involved in this matter, some of which may conflict with each other. On the one hand, as stated by the MACC Chief Commissioner, the recordings’ content involve the possible commission of serious offences including abuse of power by those in high office. That is clearly within the scope of the MACC’s mandate and in the interests of accountability and transparency, it is beneficial for the MACC to update the public on such investigations.
However, the manner in which the surveillance was carried out could involve serious breaches of privacy; which is an important human right that should be safeguarded. This right is enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and any derogation must be prescribed by law, be necessary to achieve a legitimate aim and be proportionate to the aim pursued.
The MACC has declined to reveal how they obtained the recordings and news reports suggest that they were sent anonymously. It is thus unclear whether or not the surveillance was carried out by the State or provided to the MACC by a whistleblower.
Human Rights and Surveillance
If the surveillance was carried out by the State, international human rights standards require that the surveillance must meet stringent criteria. According to the International Principles on the Application of Human Rights to Communications Surveillance (“The Principles”), permission for surveillance must be granted by a competent judicial authority and must meet, amongst others, the following criteria:
1. There is a high degree of probability that a serious crime or specific threat to national security has been or will be carried out.
2. There is a high degree of probability that evidence that is relevant and material to the serious crime of specific threat would be obtained.
3. Other less invasive techniques have been exhausted or would be futile, and the surveillance suggested is the least invasive option and will be confined to that which is relevant and material.
4. Any excess information will not be retained, but will be promptly destroyed or returned.
The Principles also state that states should enact legislation criminalising illegal communications surveillance by public or private actors, with avenues for redress by those affected, although the law should also recognise and provide for protection for whistleblowers.
Section 116C of the Malaysian Criminal Procedure Code (CPC) allows for the Public Prosecutor to authorise the police to intercept and record messages or conversations, if it is considered that such communication is likely to contain any information relating to the commission of an offence. It also states that any evidence obtained in this manner is admissible in court.
In our view, this section contravenes the international human rights standards set out above and do not contain the requisite safeguards to protect individuals’ right to privacy. The revelation of these recordings by the MACC serve to highlight the unacceptable and very low threshold currently required by the CPC for the police to be authorised to listen in on our conversations and read our messages.
Release of recordings
As a public authority tasked with investigating corruption, it is certainly within the MACC’s mandate and duty to keep the public informed about its investigations. Given however, the possible breaches of privacy in the obtaining of the recordings, the MACC needs to be clearer about its procedural standards for the release of such material.
Even if surveillance material was obtained legally and in line with internationally human rights standards, given the private nature of such information, government authorities would still require guidelines on how and when such information should be disclosed to the public.
The Principles state that only communications that are relevant and material to the serious offence allegedly committed should be retained and other information should be destroyed or returned.
To balance the public interest and the right to privacy, and in the interests of proportionality, it may have been sufficient for the MACC to provide the public with the relevant information in a report or transcript, instead of playing the entire recordings verbatim. This would have avoided the unhealthy, sexist and intrusive speculation and comments regarding the former prime minister and his marriage, which are unrelated to the offences allegedly committed.
CIJ urges the MACC to reveal if the following are in place:
1) Existing internal systems and controls to ensure that the necessity and proportionality tests have been carried out prior to releasing the audio recordings; and
2) Measures to guarantee the protection of whistleblowers.
This would serve to reassure Malaysians that surveillance information obtained by government authorities would be handled responsibly and in line with international human rights standards.
In the light of these events, CIJ would encourage the government to:
1. Undertake a review of section 116c of the CPC to ensure that it is in line with international human rights standards and that our citizens are not being subject to unnecessary and intrusive surveillance and interception of communication without due process;
2. Undertake a review of privacy laws and whether additional laws and measures are needed to criminalise illegal communications surveillance and interceptions, with sufficient protection for whistleblowers;
3. MACC to publish their guidelines and internal controls on when they can disclose surveillance information in the public interest and what safeguards are in place for whistleblowers.
