KUCHING: The issue of wiretapping is currently a hot topic following Malaysian Anti-Corruption Commission’s release of a series of audio recordings of high-ranking government officials, including former Prime Minister Datuk Seri Najib Razak.
Syahredzan Johan, a civil rights lawyer, said changes to the Criminal Procedure Code (CPC), which made intercepting and recording private conversations possible, were made in 2012 during Najib’s tenure as Prime Minister.
Wiretapping or telephone tapping is the act of monitoring telephone and Internet-based conversations by a third party, often by covert means and legal wiretapping by a government agency is also called lawful interception.
For example, back in 2013, a tapped telephone conversation between suspect Datu Amir Bahar alias Datu Bahang and an individual known as Raja, the suspect mentioned being alerted by one ‘Hassan’ (believed to be a policeman) that Malaysian security forces would be moving in on the intruders at midnight (on Feb 26, 2013)
In the same year on Oct 23, the country saw the tabling in Parliament of the amendments to the Security Offences (Special Measures) Act 2012 (Sosma).
On the surface at least, the amended clauses that were tabled may not seem major, they are said to highlight a significant threat to privacy through the wielding of Sosma, a legislation instituted to replace the Internal Security Act (ISA), which was repealed in April 2012.
By the title of “Power to intercept communication”, Section 6 gives the public prosecutor the power to authorise any police officer to intercept any postal article, as well as any message or conversation being transmitted by any means at all, if he or she deems it to contain information relating to a “security offence”.
Therefore, it also gives the public prosecutor the power to similarly require a communications service provider like telecommunication companies to intercept and retain a specified communication, if he or she considers that it is likely to contain any information related to “the communication of a security offence.”
In addition, it gives the public prosecutor the power to authorise a police officer to enter any premises to install any device “for the interception and retention of a specified communication or communications.”
Comparing to other countries that has wiretapping laws and legal status;
In the United States, under the Foreign Intelligence Surveillance Act, federal intelligence agencies can get approval for wiretaps from the United States Foreign Intelligence Surveillance Court, a court with secret proceedings, or in certain circumstances from the Attorney General without a court order.
The telephone call recording laws in most American states require only one party to be aware of the recording, while 12 states require both parties to be aware, as it is considered better practice to announce at the beginning of a call that the conversation is being recorded.
In Canada law, the police are allowed to wiretap without the authorisation from a court when there is the risk for imminent harm, such as kidnapping or a bomb threat as they must believe that the interception is immediately necessary to prevent an unlawful act that could cause serious harm to any person or to property.
In India, the lawful interception of communication by authorized law enforcement agencies, that is carried out in accordance with Section 5(2) of the Indian Telegraph Act, 1885 read with Rule 419A of Indian Telegraph (Amendment) Rules, 2007, with the directions for interception of any message or class of messages shall not be issued with exception of an order made by the Secretary to the Government of India in the Ministry of Home Affairs.
Thus, the Malaysian government are indeed allowed to tap telephone conversations, since wiretapping was approved during by the Najib administration.
