Lawbreakers cannot be lawmakers

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Lawbreakers cannot be lawmakers

Lawbreakers cannot be lawmakers

Monday, August 6, 2012
  •  rafizi whistleblower bafia
The distribution of the documents meant very clearly that Rafizi did commit a violation of BAFIA. (Graphic by Dayang Norazhar/The Mole)

A flurry of lashback surfaced after PKR Strategy Director Rafizi Ramli was charged in the Shah Alam Sessions Court for contravening the provisions of BAFIA when he disclosed customer bank account profiles. He had colluded with a bank employee to steal protected information that was subsequently distributed to a roomful of reporters. Rafizi and his Robin Hood ways while sounding a nice fairy tale did not amuse Bank Negara Malaysia (BNM). They shot him a string of charges. Fabiani Azmi investigates the scene of the crime.

  

In thirteen minutes, one could see the crime of Rafizi Ramli in its entirety. Cameras tell no lies. Only Rafizi did. MalaysiaKini.TV provided the evidence here.

 

Yes, Rafizi went to great lengths to expose 21 confidential bank accounts of companies and individuals, providing a running commentary and a concocted perception that hefty loans had been taken by NFCorp directors on the merit of a RM71 million government deposit in the bank. At his news conference on 7 March, Rafizi distorted and misrepresented facts. He lied that NFCorp chairman Datuk Seri Dr Mohd Salleh Ismail had taken massive loans for KL Eco City office units when none were taken. He was unaware that the bank had written to cancel its loan offer on 4 January 2012 and went on to paint an ugly mirage of falsehoods to the peril and detriment of others.

 

At a subsequent news conference on 14 May, Rafizi introduced his accomplice, one Johari Mohamad, a bank clerk who had been accused of extracting the confidential bank customer information. Johari, we are told, had been interrogated to his wits by both his employer Public Bank Berhad and BNM. It reached a point that Johari resigned his job. Again, MalaysiaKini.TV provided the evidence.

 

Given the evidence and the statements, Bank Negara Malaysia came down on Rafizi like a ton of bricks. Five policemen and five BNM officers did a dawn raid. BAFIA provisions are very clear. And they had been flouted. The Act says it clearly:

 

Secrecy

97. (1) No director or officer of any licensed institution or of any external bureau established, or any agent appointed, by the licensed institution to undertake any part of its business, whether during his tenure of office, or during his employment, or thereafter, and no person who for any reason, has by any means access to any record, book, register, correspondence, or other document whatsoever, or material, relating to the affairs or, in particular, the account, of any particular customer of the institution, shall give, produce, divulge, reveal, publish or otherwise disclose, to any person, or make a record for any person, of any information or document whatsoever relating to the affairs or account of such customer.

 

97. (3) No person who has any information or document which to his knowledge has been disclosed in contravention of subsection (1) shall in any manner howsoever disclose the same to any other person.


While some quarters were riled by the BAFIA charges, the Association of Banks in Malaysia came out to articulate that client confidentiality or secrecy must be upheld at all costs.

 

The Association’s 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.

 

Wahid was also quoted to have said to NST, “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."

 

The video clip by MalaysiaKini.TV provided for contrasting remarks by Rafizi, Johari and PKR Vice President N Surendran. First, Rafizi introduced Johari Mohamad as the whistleblower. Johari on the other hand was quick to mutter he was NOT a whistleblower - helped along the way by PKR vice president N Surendran to underscore that fact.

 

One moment this is the whistleblower, the next he isn’t. The unorganised news conference of the opposition begs the question: is there a whistleblower or is there no whistleblower?

 

Surendran then added that it was an act to expose the massive wrongdoing of NFCorp, “We have a situation where someone, the whistleblower, has revealed to the public, huge cheating and misappropriation of public funds to the tune of two hundred and fifty million.”

 

So here Surendran confirms there is a whistleblower.

 

But documents extracted by Johari and given to the media by Rafizi weren’t about huge cheating and misappropriation of public funds. They were merely bank balance summaries of private loans taken by individuals for properties in 2005 and 2008, long before NFCorp was established. There was never any whistleblowing to begin with. Rafizi dramatised the bank balance summaries to for political mileage.

 

Nevertheless, the distribution of the documents meant very clearly that Rafizi did commit a violation of BAFIA. And Johari Mohamad had abetted him. Together, they had schemed to expose the bank accounts under the guise of whistleblowers. Awkwardly, they ended up getting caught for their unlawful actions.

 

BNM governor Tan Sri Zeti Akhtar Aziz would not have allowed a prosecution based on flimsy investigation and evidence gathering. The central bank would have been quite thorough. As a result, BNM and the AG are determined to nail the two in court. This is a 100% violation of BAFIA.

 

In underscoring the violation, Prime Minister Datuk Seri Najib Tun Razak added, “Anyone in possession of confidential financial information relating to corruption must relay it to the Malaysian Anti-Corruption Commission (MACC) instead of releasing it to the public, which will run them afoul of the law.”

 

It looks like a rocky road for Rafizi and Johari. So much evidence from the video clips piled against them. Even as their lawyer N Surendran tried hard to suggest wrongdoing by NFCorp, there isn’t anything devious from those bank balance summaries. The evidence is clear cut that Rafizi and Johari had broken the law.

 

Today, both claimed they are victimised whistleblowers that should be protected under the Whistleblower Protection Act 2010. To fall under this provision, one needs to prove that the disclosure contained elements of improper conduct. Bank documents given by Rafizi however show none.

 

As an expert close to those who drafted the Whistleblower Protection Act said, “Looking at the players involved in this drama it is clear that the actions of Rafizi and the people coming to his defence are clear examples of manipulation of the letters of the law to suit one’s political agenda.”

 

Rafizi believes he is morally right when in actual fact, he is legally wrong. This is akin to one stealing from your bank account to feed the poor.

 

“The action of the people coming to his defence in claiming that he is a whistleblower victimised for being a member of the Opposition, despite knowing that he did not come with clean hands, is also a clear case of manipulating and distorting the provisions of the law to confuse and influence the public, or rather, pretending to be ignorant of the letters of the law or just plain stupidity on their part,” the aforementioned expert said.

What this all adds up to is that we can’t have such lawbreakers for lawmakers.

 

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. 

 

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