The recent move by the newly-appointed attorney-general to charge Khairuddin Abu Hassan and his lawyer Matthias Chang with trying to sabotage the country banking and financial services reminded me of an earlier episode in 2012.

This was where PKR then-director of strategy Rafizi Ramli was charged under the Banking and Financial Institutions Act (Bafia) with disclosing financial documents related to the National Feedlot Corporation (NFC) scandal and former Public Bank clerk Johari Mohamad was charged with leaking the documents to Rafizi.

Rafizi had been instrumental in revealing NFC’s alleged misuse of a RM250 million government loan supposedly for beef supply on luxury properties and overseas holidays in the now notorious ‘Condo Cows’ saga.

NFC chairperson Mohd Salleh was charged with two counts of criminal breach of trust involving NFC funds close to RM50 million and another two counts of breaching the Companies Act.

On the face of it there was a breach of Bafia as Rafizi may have obtained private financial information and disclosed it to the media and the public. The prime minister said that whoever has information should reveal it to the Malaysian Anti-Corruption Commission (MACC).

Well, MACC has been known to drag its feet. It would be safe to say that the publicity generated by Rafizi expose maybe one reason that MACC has been very quick to charge Mohd Salleh.

The prime minister said at that time, “The reason why Bafia is there is to protect the integrity and credibility of the financial system because anyone who has accounts in the financial system must feel well-protected. Otherwise, people will not put money in the system. People from overseas will not put money in Malaysia and that is against public interest.”

As a former bank employee I fully agree that banking confidentiality is important and information cannot be simply divulged.

However, even the ultra-secretive Swiss banking system has now acknowledged that banking secrecy should not be used to shield tax evasions, money-laundering or ill-gotten gains. And I don’t think we want the corrupt to put money in the Malaysian financial system.

At that time I had asked the government to think about the wider implications that the prosecution of Rafizi and the bank clerk (who is a bank union member) which is perceived as selective prosecution by many, may defeat the very efforts of the government to encourage whistle blowers to come forward to provide information on corruption and other criminal activities. To me, this is shooting the messenger.

It must be noted that in this instance it is safe to say that the disclosure is not a witchhunt, a mischievous attempt to defame anyone nor is it a publicity stunt or for self financial gain or used to extract unfair commercial or business advantage.

Transparency International Malaysia, at that time headed by Paul Low, now Minister in charge of Integrity, has urged that whistleblowers to be protected. Any perception that whistleblowers will be selectively prosecuted will be damaging to the government effort to fight corruption and is inconsistent with the intention of the Whistleblower Protection Act. The Act is to encourage informers expose corrupt practices and other misconduct.

The prime minister stressed that the charge against Rafizi did not mean that the government was not against corruption. “It does not mean that we will condone corruption or money-laundering because you can always reveal this information to the appropriate authorities.”

Sending the wrong message

I agree, but targeting whistleblowers surely do not help in efforts to fight corruption or crime. Yes, some whistle blower may do it for a political agenda, some may want their moment of fame, but so long as the whistling is bona fide and has actually exposed a crime, prosecuting them just sends the wrong message.

Let’s say that, in trying to help the police to catch a thief, I drove my car in excess of the speed limit to give chase, and succeeded in helping to apprehend the murderer. Should I be charged with speeding? Legally, I may have broken the law.

Under the Malaysian judicial system, the attorney-general has unfettered discretion to initiate prosecution or not. This discretion is for very good and judicious reasons, as he must take into account public interest. So the question is which is the greater public interest? To catch the murderer, or the breaking of the speed limit?

Fast forward to 2015, and we now have two individuals accused of sabotaging the Malaysian Banking and Financial services simply because they make police reports against 1MDB in various foreign countries.

ANDREW LO is CEO of the Sarawak Bank Employees Union (SBEU).