Saturday, 11 August 2012

Conflicts in - Between the "spirit" & the 'letter"

Oddities in law

by Azmi Sharom

Brave New World (The Star)
8 August 2012

To the layman, what PKR’s Rafizi Ramli and former bank clerk Johari Mohamad did was for the greater public good when they exposed a scandal involving millions of ringgit which came from public coffers. So why prosecute them?


IN the past two weeks a couple of legal oddities have come to light. The first is with regard to the Whistleblower Protection Act (WPA) and the second is with the University and University Colleges Act (UCCA).

The WPA has come into focus because of the arrest and charging of Rafizi Ramli and Johari Mohamad under the Banking and Financial Institutions Act (Bafia).

The question on many people’s mind is: Why are they being charged since what they did was to expose certain banking documents that uncovered the National Feedlot Centre scandal? In other words, shouldn’t these two men be protected by the WPA?

Let’s break down the legal situation in this case.

On the face of it, Rafizi and Johari did breach the Bafia. Rafizi exposed private banking documents and this is in contravention of section 97 of Bafia, while Johari is accused of aiding him and this falls foul of section 112.

To the layman, however, what they did was not for private gain but for the greater public good, exposing a scandal which involves millions of ringgit which came from public coffers. Why then should they be punished?

Now, here is where the legal oddity comes in. If we look at section 6 of the WPA, we find that a person can make a disclosure of information and he could be protected if that disclosure is not specifically prohibited by any written law. Rafizi’s disclosure is clearly prohibited by the Bafia.

Secondly, according to section 6 of the WPA, this disclosure ought to be made to an enforcement agency, which Rafizi did not do as he made the disclosure to the press.

Therefore, it does appear that the charging of these two men does not go against the letter of the law.

Whether it goes against the spirit of the law and of recent pronouncements made by the Government that they are against corruption, is another story altogether.

I would argue the section 6 provision that a disclosure must not be specifically prohibited by any law is problematic and should be removed from the WPA.

From my understanding, even if Rafizi had gone to an enforcement agency, for example the Malaysian Anti-Corruption Commission, he would still be unprotected as a whistle blower because the information he is disclosing to them is prohibited by the Bafia.

Yet, in this case, the uncovered information is important as it can help in the battle against corruption.

I submit that what is important is not whether the disclosure goes against any laws; what we should be focusing on is the effect of the disclosure.

That is to say, if the disclosure exposes a serious crime or evidence of corruption, then the fact that by disclosing the information the whistle blower is in breach of a law should not be a factor.

If the action of the whistle blower is for the public good, then this should be a defence against any law he may have broken.

Taking criminal law as an example: if I hit a man, then I have committed a crime. However, if I hit him because he would stab my mother if I did not, then I have a defence under the law.

With this in mind, it struck me as strange that the Attorney-General has seen it fit to prosecute Rafizi and Johari.

From my argument above, there is a shortcoming in the law, particularly the WPA.

What these two men did was in the public interest. There is no likelihood that the breach of the Bafia in this case is going to cause any serious implications.

After all, the only people who have anything to fear are the corrupt.

So, if there are concerns that foreigners won’t put their money in our banks, I would say they do not have anything to fear if they are not corrupt.

Now, to fix the WPA will take time. But surely, until that is done, the A-G can use his discretion to simply not prosecute these two men in this particular case. Does he not want to fight corruption?

The second legal oddity is a seeming contradiction in the UCCA.

The Deputy Minister for Higher Education pointed out that the amended UCCA allows university students to join political parties, yet at the same time it does not allow any party political activity on campus.

I agree with the Deputy Minister; this is a rather odd state of affairs. However, I don’t think it is the biggest issue with regard to the UCCA.

From my decades long experience with university students, joining a political party is not high on their list of priorities.

After all, what kind of political nerd are you to want to join a political party at the age of 19? The only thing you will experience from doing so is the loss of interest from the opposite sex.

No, from a political context what is more important is their general right to expression, assembly and association.

It would be churlish to say that the UCCA has not been improved by the recent amendments. For example, there is now a presumption that a student can join any group unless it is illegal or unless the university says they can’t. In the past, they could not join any organisation at all without the express permission of the university.

However, these improvements are rather shallow. Dig a little deeper and you will see that students can still be severely punished by the university for exercising their constitutional rights.

This is because the universities have disciplinary rules which do not respect the students’ constitutional rights. They all have very broad “offences” such as spoiling “the good name of the university” in their rule books.

So, if students take part in a perfectly legal demonstration for example, the university disciplinary board can still punish them for “spoiling the good name of the university”.

And this discipline board can really disrupt their lives. They can suspend or even expel a student with immediate effect.

This means that even if the student goes through the appeal process, he may have already wasted a semester or even longer.

The punishment takes effect before the appeal process can run its course.

Therefore, the university still has far too much power and seeing as it is unlikely they will temper this power with a respect for human rights and the Federal Constitution, the issue of the UCCA goes much further than whether a student can wave party political flags from his dorm window.