Former Malaysian Prime Minister Najib Razak talks to media at Kuala Lumpur's High Court after a hearing in the 1MDB financial fraud case on October 25, 2018. Photo: AFP via Andalou Agency/Adli Ghazali
Former Malaysian Prime Minister Najib Razak talks to media at Kuala Lumpur's High Court after a hearing in the 1MDB financial fraud case on October 25, 2018. Photo: AFP via Andalou Agency / Adli Ghazali

Malaysia’s criminally charged ex-premier Najib Razak admitted he was “shocked” when anti-graft investigators last week released explosive audio recordings of private discussions he had with several prominent public personalities, the latest twist in the multibillion-dollar corruption scandal involving state fund 1Malaysia Development Berhad (1MDB).

The Malaysian Anti-Corruption Commission (MACC) recently made public nine recordings of telephone conversations taped between January and July 2016, which the agency claims constitute attempts by the then premier to manipulate investigations into 1MDB and conceal other fraudulent acts linked to the alleged mass pilfering of public funds.

While captivating the Malaysian public and setting social media ablaze with memes, the recent disclosures divided legal experts with some claiming the anti-corruption agency’s decision to publicly release the recordings constituted a breach of legal ethics, sparking debate about privacy rights and laws permitting surveillance in Malaysia.

The bombshell recordings, which MACC chief Latheefa Koya said were verified by forensics experts, were of separate telephone calls between Najib and his wife Rosmah Mansor, United Arab Emirates’ crown prince Mohammed bin Zayed al-Nahyan, and then-senior deputy public prosecutor Dzulkifli Ahmad.

In one taped exchange, Rosmah can be heard chiding her husband for allowing himself to be depicted as “a villain” over graft allegations. “Can I advise you on something?” she shouted, before directing him to take charge and manage the 1MDB scandal, which investigators at the United States Department of Justice (DoJ) had already begun probing.

“I don’t like this. Darling, you are the prime minister. You should take charge, not anybody else,” she urged in the July 2016 call. Rosmah then counseled her husband to persuade Abu Dhabi’s International Petroleum Investment Company (IPIC) to withdraw its attempt to bring 1MDB to arbitration over US$6.5 billion in outstanding debt payments.

Rosmah Mansor (C), wife of former Prime Minister of Malaysia Najib Razak, arrives at Kuala Lumpur High Court on October 4, 2018. Photo: Anadolu Agency via AFP Forum/Adli Ghazali

Seeking to reassure his wife, Najib replied that “the Chinese side is moving already,” an apparent reference to a “secret plan” to quietly settle 1MDB’s debts using a $2.3 billion loan from a Chinese state-owned bank that Amhari Efendi Nazaruddin, a former special officer to the premier, described in court when he testified in September.

For many, the exchange gave credence to widely-held perceptions that Rosmah exercised undue political influence during her husband’s nine-year tenure. Infamous for her ostentatious displays of wealth, Rosmah watched police seize $273 million in jewelry, purses and cash from her home during a 2018 raid they described as the “biggest seizure in Malaysian history.”

In a separate call, Najib urged the Emirati crown prince to help fabricate a loan agreement to shield his stepson, Hollywood film producer Riza Aziz, from corruption allegations. He claimed his stepson was in the dark about funding he received: “He’s totally innocent, all he wanted was to make movies,” Najib claimed.

“At the moment, he [Riza] is under a bit of pressure in America, I’m worried about him in case they make him a scapegoat,” said the former Malaysian leader, who aimed to show that 1MDB funds which flowed to his stepson’s film production company, Red Granite, were “a legitimate financing package [from IPIC] and not money laundering.”

In 2018, Riza reached a $60 million settlement with the DoJ over claims that the 2013 Leonardo DiCaprio film “The Wolf of Wall Street” was financed with funds from the state investment arm established by his stepfather. He faces 5 counts of money laundering in Malaysia and has pleaded not guilty to the 1MDB-linked charges.

In another conversation recorded in January 2016, just prior to Najib being cleared of 1MDB-related wrongdoing by then-Attorney General Mohamed Apandi Ali, then-senior deputy public prosecutor Dzulkifli told the then-premier regarding a domestic probe into the scandal: “On the legal side, we can handle. Apandi can handle it. I can handle it.”

“If that’s not subverting justice, I don’t know what is,” said Dave Ananth, a former Malaysian magistrate who spoke to Asia Times. He said the recordings amounted to “a premeditated, calculated attempt to cover up, interfere and divert the course of an ongoing criminal investigation.”

Former Malaysian prime minister Najib Razak leaves the courthouse in Kuala Lumpur on December 12, 2018 after being charged in court. Photo: AFP/Mohd Rasfan

MACC’s public release of the recordings, which the agency said were provided by an anonymous source earlier this month, divided opinion in the legal community. Abdul Fareed Abdul Gafoor, president of the Malaysian Bar, said the disclosure had given rise to allegations of contempt and sub judice, and would complicate relations with the UAE.

Muhammad Shafee Abdullah, lead defense counsel for Najib, echoed similar views in remarks to the media and said his client was seriously contemplating a contempt action against MACC and its chief commissioner, Latheefa, for attempting to “influence and sub judice” the ex-premier’s ongoing corruption trials.

“Latheefa Koya is not naïve. She would have sought opinions [on the release of the recordings] from her peers in [Attorney-General’s] Chambers,” said Ananth. “She made a calculated decision and, in my view, the right one. The probative value to release the audio in the public interest outweighs any prejudicial effect to the accused.”

Najib, who lost power at 2018’s general election, faces life in prison if he is convicted for only a handful of the 42 charges he faces, ranging from corruption and money laundering to abuse of power and criminal breach of trust. His wife Rosmah faces 20 criminal charges for money laundering and bribery. Both maintain their innocence and deny wrongdoing.

While some legal experts say MACC can be sued for possible defamation for releasing the recordings to the public instead of using them in court as evidence, enforcement agencies are by law allowed to intercept the communications of any Malaysian – including a sitting prime minister – in relation to the commission of an offense.

Though Malaysian law also does not expressively prohibit agencies such as MACC from releasing taped recordings to the public, the interception of private communications can only be legally authorized by the public prosecutor in relation to the commission of a crime, and it is not clear whether the controversial recordings were made with such permission.

The MACC’s Latheefa Koya in a file photo. Photo: Facebook

“Given all the information we have at this stage, it is not likely that the authorities intercepted the recordings,” said constitutional lawyer Lim Wei Jiet. “MACC said they received it from an unnamed source and they have handed it to the police – so that rules out both of these organizations.”

Ananth, who is now a senior tax counsel with Stace Hammond Lawyers in Auckland, New Zealand, sees it differently: “I think the recordings were authorized by a high-ranking enforcement official. We don’t know if it is the police or MACC, but it has to be one of the two agencies.

“Obviously, whoever did it, knew what was going on, the players and the attempts to subvert the investigations,” the former magistrate said.

Legal opinion is spilt on the question of whether the recordings ¬– if illegally-obtained – would be admissible as evidence in court.

“Under Malaysian law, unlawful or illegally obtained evidence is inadmissible in a court of law,” Lim told Asia Times, though other experts have cited possible loopholes in which such evidence could be allowed.

A signboard for the 1Malaysia Development Berhad state fund in Kuala Lumpur. Photo: AFP

“In my view, MACC’s release of the recordings are neither unlawful nor unethical,” said Lim.

“It is of great public interest for the citizenry to know how elected officials have abused their power, how the executive had interfered with supposedly independent law enforcement agencies and whether national sovereignty has been compromised by deals with foreign powers to cover up crimes.

“These are not ordinary crimes committed by the ordinary man on the street – an exception must be made here,” said the constitutional lawyer.

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