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,
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.