BAFIA: What bankers and others say

There is much brouhaha with regards to recent violations of the Banking and Financial Institutions Act, 1989. The alarm bells have been triggered as a result of what PKR Strategy Director Rafizi Ramli did. He colluded with a bank clerk, stole the information of 21 bank accounts belonging to companies and individuals, analysed it, commented on it and even distributed copies to reporters to defame the customers saying they were not credit-worthy with miserly bank balances, unable to pay for their loans, and were leveraging on a government deposit to borrow. Public outrage is now surfacing on this vile disclosure. It is akin to stripping one completely naked to the core for all to see. Fabiani Azmi, who doesn't have much wealth to show, has tracked what bankers and others say...

Bank Negara Malaysia (BNM) governor Tan Sri Dato' Sri Dr Zeti Akhtar Aziz was the first to speak up on BAFIA. In a media response she gave Bernama following complaints lodged to the central bank, Zeti said, “The confidentiality of customer information is clearly protected by the Banking and Financial Institution Act 1989 (BAFIA).”

She pointed out that it was an offence under the Act for any officer of the bank to disclose any information relating to the account of its customer, and banks have in place control and effective processes to ensure compliance with this secrecy provision.
 

Zeti said it was only when there is a suspected offence under federal law, or if there is a court order or where a customer has given consent, that relevant law enforcement agencies are authorised under the law to obtain information. This information must be obtained through Bank Negara Malaysia, and if the central bank says there is no foundation for it, the information will not be given.
 

So who gave Rafizi Ramli the permission to expose the 21 bank accounts? Not the complainants, I am sure. Not the bank either. Neither would it have been BNM. Then, who?
 

Fingers were first pointed at Rafizi for the BAFIA contravention in March 2012 when NFCorp’s group finance manager lodged a police report. In April, NFCorp’s chairman filed a second report followed by a personal hand delivery of his complaint to BNM on 30 April. On 14 May, a bank clerk named Johari Mohamad was revealed to reporters by Rafizi as the accomplice involved in the leak. Johari denied he had extracted the banking information saying he was merely a clerk. But he must have been a very powerful and influential clerk as he had the access to delve into customers’ bank accounts with ease. With 17 years banking experience, he must have learnt the weaknesses of the system. Or did he collude with a manager? Or did he rip-off access passwords to share with Rafizi?
 

While some quarters were infuriated by the BAFIA charges thrown on Rafizi, the Association of Banks in Malaysia came out to emphasise that client confidentiality or secrecy must be upheld at all cost. Chairman Datuk Seri Abdul Wahid Omar said it was a fundamental aspect of a bank-customer relationship. "It forms the main pillar of integrity and confidence in the banking system. It must be preserved and cannot be compromised," he said.
 

“Banks not just in Malaysia but worldwide, have zero tolerance towards any breach of banking secrecy. We will not hesitate to dismiss any employee found to have breached banking secrecy provision immediately," he said.
 

However, Johari was not sacked. He resigned due to mounting pressure on the discovery of his alleged crime, he said. Does this then end the central bank’s trail of his alleged wrong doings? Why would Johari really resign? Can he afford to do so? Was he forced to resign so as to end the investigation trail on a scandal of bigger magnitude? What is the bigger picture? Is there more than meets the eye for BNM?
 

SME Bank managing director Datuk Mohd Radzif Mohd Yunus said sharing such information with a third party was not right and would have a disparaging effect on the bank. "The integrity of the information is the key. It must be kept private and confidential on behalf of the borrower," he said when contacted by the NST.
 

What are the implications then for the bank? Will their management share the same prospect confronting Rafizi and Johari – a fine of RM3 million and a jail term of three years, or both? Will the bank’s banking licence be revoked? Nothing has been said by BNM on their punitive measures on the bank.
 

The bank would have failed in their fiduciary duty to protect the confidentiality of its customer accounts as required of them under Section 97 (1). Rafizi Ramli would have violated the same section as well as Section 97 (3) when he unlawfully obtained the information and subsequently distributed to the media. The bank would also have breached their client charter on privacy and secrecy.
 

Bank Pembangunan president and group managing director Datuk Zafer Hashim said the relationship between a bank and its clients was driven by a trust.
 

“Clients would avail to the bank proprietary and personal information on the basis of this trust. If the bank failed to protect thisrelationship, its well being would be at stake,” he said.
 

Regulatory leaders such as Bursa Malaysia chief executive officer Datuk Tajuddin Atan also offered their views. Tajuddin said that without financial integrity, Malaysia’s capital market would not be where it is today. He said Malaysia had earned a lot of respect locally and internationally for its Islamic and conventional financial systems, and for its ability to safeguard every concern, especially clients’ personal information which could not be revealed freely.
 

“No clerk can go into my account and reveal its content to a third party. He has no authority to do so,” he said.
 

If that is the case, Johari must be a bank clerk with immense power and influence to siphon the information out for Rafizi’s revelation. Whose access passwords did he use?
 

Former EON Bank chairman Datuk Gooi Hoe Soon said he was concerned about investor confidence in Malaysia should such a banking law be breached. He said banker-client confidentiality had to be protected at all costs.
 

But who is being protected at all costs? Not the customer. Selangor MB Tan Sri Abdul Khalid Ibrahim has announced that his State Exco is protecting, at all costs, the opposition’s blue-eyed boy Rafizi Ramli -- at least to the tune of RM500,000 from public money for his criminal act.  Wisdom seems to be misplaced here.
 

Lawyers for Liberty in a statement condemned the BAFIA violation charge, saying criminalising whistleblowers was tainted with bad faith aimed at supressing evidence of government-linked corruption and protecting perpetartors from being brought to justice.
 

The news release and bank documents sighted by the writer do not show any evidence of government-linked corruption. They were just bank balance summaries on deposit and operating accounts. It would appear that Rafizi would have to really prove beyond a reasonable doubt that there was wrongdoing. The truth has caught up with his lies and wrongdoings.
 

Rafizi may just have trampled over his political agenda. As a Mole respondent once said, “Bitten more than you can chew?”
 

About the Writer
 

Fabiani Azmi is an avid reader of The Mole and the blogs. He believes equations are simple to solve. One plus two certainly equals three.

Source: MOLE