Press statement by Kua Kia Soong, SUARAM Adviser 13 Jan 2020

In their exuberance over the exposure of wiretapped conversations of the former Prime Minister, some Malaysian NGOs have sanctioned the release of these audio recordings by the MACC, carelessly muddling through historical facts in the process and justifying the legality of the process.

Now, if we had to justify the legality of actions by the Government, even detention without trial can be justified because the same laws were passed by the Malaysian parliament. But if these NGOs are concerned about defending human rights, then it is a different matter altogether. The Protection of Privacy is firmly entrenched in Article 17 of the International Covenant on Civil and Political Rights.

First of all, wiretapping has never been okay in any human rights circles and that is the number one lesson of Nixon’s Watergate and his fall from grace. On the other hand, the revelations in Bill Clinton’s forage with Monica Lewinsky and Donald Trump’s Ukrainian arm twisting are the result of routine White House recordings, not wiretapping by the FBI. Can you imagine MI5 wiretapping the British Prime Minister and then sending the recordings to some government agency or the press?

Thus, in all these cases, we can see that wiretapping is done by the secret service of the country in question. However, in the case of the wiretapping of the Malaysian Prime Minister in 2016, the Special Branch in Malaysia has not owned up to the fact that they were responsible for wiretapping their Prime Minister. If they did, they would have to answer to the logical question: Who was so powerful in our “Deep State” to order the wiretapping of the Prime Minister-of-the-day? Or are Malaysians so naïve that they believe some Ah Long outfit is so bold as to wiretap the Prime Minister of the country?

This is the surprising aspect of this whole affair – Malaysians are not asking who authorised the wiretapping of the sitting Prime Minister in the first place, not even erstwhile NGOs who seem more concerned with the legality of wiretapping and the legality of the MACC releasing the recordings!

It’s fine if the Special Branch owns up and say they did it in the line of duty for the national benefit. Then we can applaud them for their patriotism but still, journalists and concerned citizens would want to know the series of events that led them to wiretap the PM-of-the-day and who gave the orders. Otherwise, we will need to establish a Royal Commission of Inquiry to determine who runs the Malaysian “Deep State”.

Human right to privacy of all human beings

Democratic countries value the right to privacy. Only police states do not. Thus, for example in the US, they have laws that enable the National Security Agency (NSA) to wiretap Americans’ international communications and to gather foreigners’ private messages from top Internet companies but such laws have time limits. It is up to Congress to decide whether to renew the law, reform it, or kill it. In June 2013, former National Security Agency (NSA) contractor Edward Snowden blew the whistle on two NSA programs which had collected large volumes of Americans’ communications as well which had nothing to do with foreign intelligence or national security. The Snowden documents revealed that the NSA has developed plans to discredit people who hold politically radical beliefs.

Through wiretapping, the U.S. government had spied on and threatened Dr. Martin Luther King Jr. and his allies in an effort to frustrate them from their activism. The FBI also used wiretapping surveillance to plant false documents to create rifts in the American Communist Party and there have been many other examples of abuse of privacy in the name of national security – Muhamad Ali, John Lennon, peace groups, anarchists… Thus, human rights defenders are concerned about balancing the right to privacy with national security. So far, we have not heard of any scandal involving the wiretapping of the US President in any administration.

In theory, in order to conduct surveillance in the US, the government must first obtain a “certification” from the Foreign Intelligence Surveillance Court (FISC) which is comprised of federal judges who make classified decisions on surveillance applications. Certifications identify categories of foreign intelligence information regarding which the U.S. Attorney General and the Director of National Intelligence authorize acquisition through the targeting of non-U.S. persons reasonably believed to be located abroad. Experts believe that these certifications are for gathering foreign intelligence information about foreign governments, counterterrorism, counterintelligence, and counterproliferation. Thus, such surveillance only takes place for these important purposes. It does not have the broad impact on everyday foreigners. It certainly does not make US citizens subject to such surveillance and certainly not the President of the US!

In France, the “Wiretapping Law” dating back to 1991 authorized wiretapping for both law enforcement and national security purposes but law enforcement is required to obtain judicial authorization from a judge prior to the wiretapping, and were called to prove that such a wiretapping would be necessary for the purposes of an ongoing investigation. On the other hand, wiretapping for national security purposes did not require such judicial authorization, and could be approved by the prime minister. In our case, it was the Prime Minister himself who was wiretapped in 2016.

Wiretapping and Accountability

Lack of accountability is perhaps the biggest systemic problem in wiretapping by the Special Branch. Today, everyone’s data is potentially subject to surveillance. As a result, modern surveillance is totally opaque and breeds the culture of secrecy we associate with the “Deep State”. Such secret operations by the Deep State only breeds illegality and misconduct. The activities of the Special Branch will continue to remain hidden from public oversight. The tools we have for checks and balances within the system also fail to deliver.

Thus, if the public and NGOs fail to realise the extent to which the Special Branch is allowed to wiretap Malaysian citizens including the Prime Minister-of-the-day, we are no better than a Police State. Malaysian MPs should be concerned about protecting our communications from surveillance without a search warrant; protect us from indiscriminate searches of communications content, and support greater transparency and public oversight. And Malaysian NGOs should be more concerned with defending the right of Malaysians (including the PM-of-the-day) to privacy instead of justifying wiretapping by the powers-that-be.

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