Whistleblower Act cannot save Rafizi

Today, Bank Negara Malaysia (BNM) and the Attorney General leveled charges against PKR Strategy Director Rafizi Ramli and a bank employee for violating the Banking and Financial Institutions Act, 1989 (BAFIA). The charges were read at the Magistrate Court of Shah Alam in relation to the illegal disclosure of banking information of several companies and individuals. Critics say the case will put whistleblower protection laws under greater scrutiny. Fabiani Azmi quickly reads up the Whistleblower Protection Act 2010. He discovers that Rafizi and Johari may not be saved.

First, the charges read out in court today stated that Rafizi Ramli had violated Section 97(1) of BAFIA when he disclosed four customer account profiles detailing the balance summary of National Feedlot Corporation Sdn Bhd (NFCorp), the National Meat and Livestock Sdn Bhd, Agroscience Industries Sdn Bhd and NFCorp chairman Datuk Seri Dr Mohamad Salleh Ismail, to two individuals identified as Yusuf Abdul Alim and Erle Martin Carvalho.

 

A video clip by MalaysiaKini.TV taken of a news conference of 7 March that Rafizi gave in concert with Ampang MP Zuraida Kamaruddin and PKR Vice President and Lembah Pantai MP Nurul Izzah Anwar, confirms the BAFIA violation. Seeing is believing. (http://www.malaysiakini.tv/video/23239/more-properties-in-bangsar-bought-by-nfc-directors.html)

 

The clip showed Rafizi had exposed the bank documents to infer that the directors of NFCorp had leveraged on a RM71 million deposit to procure funds from a bank to purchase eight office lots at KL Eco City in Bangsar.

 

He went on to discredit the chairman saying he was not credit worthy as he had paltry sums in his personal bank accounts. Rafizi also went on at length to analyse the documents citing force sale values of KL Eco City properties.

 

Ultimately, Rafizi announced quite a mouthful in violation of BAFIA. To wrap it, he had also distributed hard copies of the confidential bank documents to a roomful of journalists as takeaways.

 

This obviously underscores the magnitude of his BAFIA violation that Bank Negara Malaysia took a very dim view of.

 

There is now a clamour among critics that the whistleblower protection act must come to protect Rafizi. What exactly does it say? What does it provide? Can Rafizi be protected under the act?

 

The Whistleblower Protection Act 2010 was formulated as “An Act to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector, to protect persons making those disclosures from detrimental action, to provide for the matters disclosed to be investigated and dealt with and to provide for other matters connected therewith.”

Whistleblowers need to observe a strict procedure on the methodology when disclosing information. Disclosures need to be communicated with the appropriate enforcement agency or a body established by Federal law such as the MACC and certainly not journalists. 

 

Unfortunately for Rafizi, the bank documents that he distributed to the media were customer account profiles detailing the balance summary. The statements are on private loans taken in 2005 and 2008 as evidenced by the news release given.

 

There is really nothing suspicious or incriminating about it – no money laundering, no irregularities – just plain bank account summaries. In short, there were no wrong doings. Just pure sensationalism, seasoned journalists would size.

 

Rafizi deliberately distorted and misrepresented the documents and NFCorp. He lied on the loans and insinuated wrong doings when there were none.

 

Section 11 states among others says, “The enforcement agency shall revoke the whistleblower protection conferred under section 7 if it is of the opinion, based on its investigation or in the course of its investigation that - the whistleblower wilfully made in his disclosure of improper conduct a material statement which he knew or believed to be false or did not believe to be true; and the disclosure of improper conduct is frivolous or vexatious.”

 

Section 21 of the Whistleblower Protection Act 2010 on the penalty for making false statement states that “Any person who willfully makes in his disclosure of improper conduct or complaint of detrimental action a material statement which he knew or believed to be false or did not believe to be true commits an offence.”

 

Any person who commits an offence under this Act which no penalty is expressly provided shall, on conviction, be liable to a fine not exceeding twenty thousand Ringgit or to imprisonment for a term not exceeding five years or to both.

 

MP Tony Pua said, “the government has chosen to exact revenge on the whistle-blower Rafizi”. Selangor MB Tan Sri Abdul Khalid Ibrahim added Selangor would pay for Rafizi’s legal expenses.

 

Hasn’t Rafizi resigned from his post as CEO of the Selangor Economic Adviser’s office last June?

 

Strangely neither Pua nor his comrades have spoken up for the bank employee Johari Mohamad who was bailed out by his brother.

 

When one looks at how Rafizi operates, breaking the law to champion an issue, it does not make for wrongdoing right. He ought to have been smarter to examine the ramifications. Rafizi who is trained accountant should have known better but it baffles why he would break the law.

 

The BAFIA violation will prove hard hitting for Rafizi. When the hammer comes down, the penalty is a RM3 million fine and a three-year jail term or both.

 

Source: MOLE