August 1, 2012
Aliran condemns the Arrest of PKR’s Rafizi Ramli
Aliran condemns the arrest of Parti Keadilan Rakyat Strategy Director Mohd Rafizi Ramli under Section 97(1) of the Banks and Financial Institutions Act (BAFIA), which carries a maximum jail sentence of three years and a fine of up to RM3 million.
Very much known for his recent expose of the award of the Ampang LRT extension project to water-meter and tank-maker George Kent, Rafizi’s arrest today was associated with his disclosure of three financial accounts related to the controversial National Feedlot Corporation (NFC) and its chairperson, Mohd Salleh Ismail.
Rafizi was charged for having allegedly breached the secrecy provisions of the banking law “by producing, divulging, revealing, publishing or otherwise disclosing, of any information or document whatsoever relating to the affairs or account of a banking customer”.
For all intents and purposes, the arrest is tantamount to criminalising a conscientious whistleblower whose primary objective is to reveal information for the benefit of the general public and taxpayers.
Worse, this arrest can also be interpreted as a warning to future whistleblowers who intend to unravel financial scandals involving individuals close to the powers-that-be. This is certainly a foolish way to convince the Malaysian public that the Najib Administration is serious about waging war against corruption.
The arrest and charge mounted against Rafizi in the wake of the George Kent controversy only lends credence to the suspicion that the PKR Strategy Director’s latest move has made the ruling UMNO-BN so jittery that it responded with a knee-jerk reaction.
We call upon the Federal Government to stop criminalising conscientious citizens such as Rafizi — and instead to seriously go after the crooked. — aliran.com/www.malaysiakini.com
Why is a whistleblower arrested in such dramatic style at 6am in the morning in front of his family and handcuffed while the real perpetrator charged with CBT and money-laundering walked into court with his battery of lawyers?
Lawyer Syahredzan Johan has also highlighted in Twitter earlier today that the Whistleblower Protection Axt recently enacted is toothless and powerless in a case like Rafizi and Johari. This is because of a clause in the WPA which specified that a person will not have immunity / protection under this new Act if the information he divulges is against any existing Acts. Therefore, since Rafizi and Johari have divulged a bank statement against the BAFIA Act, they cannot seek immunity under WPA.
Which then bring me to this question for the opposition MPs sitting in parliament on the day WPA was tabled by Nazri… WTF were you all doing in parliament on that day?
BAFIA was enacted decades ago for a purpose i.e. to protect the confidentiality and integrity of banking transactions. It was to fine tune the legislation that was already in place. If banking secrecy can be breached at will then we would lose confidence in our banking system with disastrous consequences. Any whistleblower legislation enacted is not to protect those who breach such legislation.
Political parties that run the government may change but the rule of law does not change with it. It is important that we understand that – and practice what we preach.
If you break the law there are consequences. No matter who you are or what your political affiliations may be. Any call for the government to stop punishing whistleblowers for allegedly exposing wrongdoings will have to be balanced by calls to respect the rule of law. Public interest may require the exposure of alleged wrongdoings of parties in their dealings with government agencies or with public officials but that does not make the disclosure any less of an offence. It is a strict liability offence and the issue only goes to mitigation at the sentencing stage.
Rafizi is facing a maximum prison time of three years and a $3 million fine, a mandatory punishment meted out by BAFIA for this strict liability offence. Considering that he did not break the law for personal gains, I expect the fine will be a small fraction of that. But he is facing some real jail time of perhaps a year or more to deter others. A small price to pay to protect the integrity of banking transactions and foreign investor confidence.
“This is because of a clause in the WPA which specified that a person will not have immunity / protection under this new Act if the information he divulges is against any existing Acts”.
It goes without saying that it is not the objective of any whistleblower legislation anywhere to excuse breaking of the law in the interest of public policy.
That’s in response to Greenbug’s comment on the issue.
Whistle blower legislation passed in Malaysia several years ago is very limited. It affords some protection but only if it involves disclosure of confidential information to the government. Malaysia continues then to become the butt of jokes at all the watering holes of the world frequented by lawyers.