The Shah Alam High Court was told Monday that PKR
strategy director Rafizi Ramli should have lodged a report under the
Whistleblower Protection Act 2010 instead of going public with his
claims about National Feedlot Corporation (NFCorp). DPP Nahra Dollah
said the complainant Datuk Seri Dr Mohamad Salleh Ismail who is NFCorp
director must have his interest as a bank customer protected despite a
matter against him. Rafizi’s lawyer argued that Salleh was not entitled
because he had been charged. What is important to note is that Rafizi
Ramli had committed the BAFIA breach before Salleh was brought to court.
This crucial point in time makes very clear that Rafizi was in absolute
breach of BAFIA at the material moment.
What is also important to note is that
on 7 March 2012, the day of the BAFIA breach, Rafizi Ramli had used the
bank documents to allude to loans taken for eight KL Eco City office
lots. The news conference Rafizi held was to drum up the drama to more
properties bought with loans leveraged on NFCorp. This was never the
truth as no loans were ever taken by NFCorp nor by Dr Salleh from Public
Bank. Rafizi’s brouhaha and bluff were aimed at riling the public and
to instigate the authorities to take action against Salleh.
The adage that ‘a man is innocent until proven guilty’ holds
true to this very day. Salleh has yet to be found guilty of any
wrongdoing and is therefore like every other person entitled to legal
representation in court to clear his name. And until his trial unfolds,
Salleh is presumed innocent. The fact is that the purchase of the KL Eco
City properties had nothing to do with NFCorp. No loans were taken from
Public Bank either. Therefore, there was never any leverage as claimed
by Rafizi Ramli.
In court, Rafizi's lawyer R Sivarasa said, "The applicant (Rafizi) wasn't making frivolous, unsubstantiated claims."
But Rafizi was making frivolous lies, distortions and misrepresentations
The bank account
summaries that Rafizi exposed had nothing to do with loans hedged on
NFCorp deposits. The bank accounts raised by Rafizi were for private
loans that go back as far as 2005, long before NFCorp was established,
and 2008, long before KL Eco City properties went on sale in 2011.
Rafizi lied, distorted and misrepresented and misrepresented his evidence to discredit Salleh and his entire family.
Section 97 of BAFIA says Rafizi is guilty
R Sivarasa argued, “[Admittedly],
an individual’s banking information is secret. But if this person faces
charges of criminal breach of trust (CBT) or a crime, this right to
secrecy is immediately taken away.” BUT nothing under Section 97 of
BAFIA says that protection is removed. There is no provision for this
contention. So Rafizi Ramli remains as charged for his BAFIA violation.
Rafizi Ramli broke the law, illegally
obtaining 21 bank documents of corporates and individuals for public
dissemination. His statements at his news conference were paint with
ploy to garner more brownie points for his political agenda. For months,
Rafizi was not taken to task for his bold and brazen ways. As a result,
Rafizi was under the delusion that he could continue with his whim and
fancy, playing hero with confidential bank documents to hype up public
interest to build his political brand.
The powerful Bank Negara Malaysia,
guardian and regulator of Malaysia’s banking and financial system,
unfortunately took a very dim view of his strategy and tactics. The
guilt was enormously evident. On 1 August, the central bank and the
police did a dawn raid. Rafizi was arrested and charged.
Quite simply, this is a case of Rafizi irresponsibly and flagrantly
flouting the law. It had nothing to do with whistleblowing, not at all.
And it also had nothing to do with NFC or NFCorp. Rafizi was alluding to
loans taken by Salleh for KL Eco City office lots that never existed.
As a result, Rafizi was charged under
Section 97(1) of the Banking and Financial Institutions Act (BAFIA) for
disclosing customer account profiles detailing bank balance summaries.
The provisions of BAFIA’s Section 97 state,
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.
What Bank Negara Malaysia said
Bank Negara Malaysia Governor Tan Sri Dato' Sri Dr Zeti Akhtar Aziz 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.”
In Rafizi’s case, BNM had not given
consent to him. Neither did Public Bank nor the account holders. And
neither did he qualify as an enforcement officer to be entitled to bank
customer information.
What bankers said
The Association of
Banks in Malaysia pointed 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.
“Banks not just in Malaysia but worldwide, have zero tolerance towards any breach of banking secrecy.”
Only a full trial and nothing less
Only a full trial
will restore the respect for Malaysia’s banking and financial system
regarded as among the best in this part of the world. It cannot for one
moment, be allowed to be destroyed by the political motives of selfish
individuals.
The court should
expedite Rafizi Ramli’s BAFIA case. It would be imperative for the court
to reassure not only the public, but businesses, multi nationals, and
investors with its findings and the consequent corrective action.
