Criminal charges negate BAFIA shield, Rafizi trial told

The criminal charges against the NFCorp chairman meant he would gain no protection from the BAFIA’s provisions, Rafizi’s lawyer argued. — File pic

KUALA LUMPUR, Nov 19 ― An individual automatically loses his right to banking confidentiality once he is charged with committing a criminal offence, a Shah Alam High Court hearing Rafizi Ramli’s application to strike out charges against him for his National Feedlot Centre (NFC) scandal exposes was told today.

Rafizi’s lawyer, R. Sivarasa, when submitting for his client in court here, agreed that while a person’s banking information should remain confidential under the Banking and Financial Institutions Act (BAFIA), the protection does not come without exceptions.

“[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,” he told High Court Judge Datuk Ghazali Cha.

Rafizi, PKR’s strategy director, was charged under Section 97(1) of the BAFIA, for allegedly disclosing four customer account profiles detailing the balance summary for National Feedlot Corporation (NFCorp), the National Meat and Livestock Sdn Bhd, Agroscience and Industries Sdn Bhd, and NFCorp chairman Datuk Seri Mohamad Salleh Ismail, to two individuals identified as Yusuf Abdul Alim and Erle Martin Carvalho.

Under Section 103(1)(a) of the same law, he may be fined a maximum of RM3 million and jailed up to three years if found guilty, which could seriously hobble Rafizi’s chances of standing as a candidate in the 13th general election that must be held by April next year when the ruling Barisan Nasional (BN) coalition’s mandate expires.

Former Public Bank clerk Johari Mohamad was also charged on August 1 with abetting Rafizi in disclosing the account profiles for the same four customers, under Section 112(1)(a) of the BAFIA, read together with Section 91(1) of the same law that deals with confidential banking information.

He faces the same sentence as Rafizi if convicted.

But when arguing for Rafizi today, Sivarasa reasoned with the court that the former had only exposed the information for the sake of public good.

He insisted that the NFC exposés, which has stayed in the media’s spotlight for about a year now, were a part of the PKR leader’s responsibility to Malaysians.

“Furthermore, the complaint using BAFIA was not made by Bank Negara Malaysia (BNM) or Public Bank but by the individual himself (Mohamad Salleh), who is currently facing criminal charges in court,” Sivarasa pointed out.

He told the court that his checks with BNM have found that no one has ever been charged with exposing banking information since the BAFIA was enacted in 1989.

This, added the lawyer and Subang MP, was proof that the charges against Rafizi were merely selective prosecution.

Sivarasa also suggested to the court that Rafizi’s actions be recognised and appreciated as a good deed, instead of one that warrants charges under the BAFIA.

He said the NFC exposés had shown blatant abuse of public monies, adding that if the revelations were made abroad, Rafizi would have been revered as a hero as his work had successfully seen Mohamad Salleh hauled to court.

“But instead, he gets charged. If this continues, what would the people’s perception be in the future,” he said

Trial judge Ghazali Cha will rule on Rafizi’s application on Friday.

The federal opposition has alleged that NFCorp directors used the loan meant for a national cattle-farming scheme to buy or finance properties in Kazakhstan and Singapore worth at least RM45 million, and to siphon out at least RM12 million to their own companies in the island state.

PKR has also accused NFCorp of “hunting down” alleged whistleblowers to “put the lid on” claims the company abused the RM250 million federal loan to finance property, luxury cars and expenses unrelated to cattle farming.

Wanita Umno chief Datuk Seri Shahrizat Abdul Jalil, who had headed the Women, Family and Community Development Ministry when the project was awarded to her family in 2006, relinquished her Cabinet post in early April over the allegations against her family.

On March 12, her husband and NFCorp chairman Mohamad Salleh pleaded not guilty in the Sessions Court to two counts of criminal breach of trust involving RM49.7 million with regards to the purchase of two condominium units.

He also pleaded not guilty to two other charges under the Companies Act.