BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
SOMETHING is clearly rotten in the state of our enforcement. The latest bizarre episode involves the declared intention by the inspector-general of police (IGP) to investigate the person who leaked the documents relating to the land deal by 1MDB to Tabung Haji. In other words the IGP wants to go for the person who blew the whistle.
But there is a law to protect whistleblowers, newly minted in 2010: the Whistleblower Protection Act. It is “to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector”. Once there is a disclosure of any wrongdoing then the IGP must protect the discloser; and investigate the complaint.
The protection is very wide. The person (including any one related or associated with him) must be granted immunity from any civil or criminal action. The protection is not lost even if the person exposed is not charged or proceeded against. The whistleblower need only have a “reasonable belief that any person has engaged, is engaging or is preparing to engage in improper conduct”. A disclosure can be made even if the person is not able to identify a particular person to which the disclosure relates.
The land “purchase” by Tabung Haji was widely opposed as putting at risk money of ordinary Muslims slowly depositing money in the Tabung for their pilgrimage.
In this context the IGP’s action against the whistleblower seems to be a rather open defiance of the purpose for which the government passed the Whistleblower Protection Act. It undermines the law.
But should not the government rein in the IGP?
At a recent Great Debate on Moderation, the minister in the Prime Minister’s Department, Datuk Paul Low, implied that it was not the job of ministers to micro-manage the police. Maybe he has a point.
But surely the government cannot condone so flagrant a violation of its law by the highest police officer entrusted to enforce it.
Malaysia’s longest serving former prime minister Tun Dr Mahathir Mohamad writes in his memoirs that while a leader may not lightly disregard police advice, the final say still lies with the minister and the government (A Doctor in the House, at page 551). And he was referring to matters of national security not a private 1MDB-type land transaction.
In fact whistleblowers should be honoured not vilified for having the courage to “blow the whistle” and shout “foul” when any misdeed against the law is suspected. That is the philosophy behind the Act.
For whistleblowing safeguards the public interest, aids accountability, exposes corruption and stems any leakages of public and private funds. This is the Rule of Law at work.
The most famous (or infamous depending on your viewpoint) whistleblower must surely be Julian Assange who blew the lid off the widespread US Government surveillance over its own people and other world leaders including the presidents of Brazil and Germany.
People the world over rewarded him with accolades. He was given the prestigious Le Monde Readers’ Choice Award; the Time award for person of the year; and named the “Rockstar of the Year” by the Rolling Stone magazine.
Our Act has limits. It says that the disclosure must not be specifically prohibited by any law. That’s the basis upon which Rafizi Ramli – the co-founder of the National Oversight and Whistleblowers ((NOW) Centre – is charged; because he exposed the Cowgate scandal using information from a bank. The prosecution contends that this is against the 1998 Banking and Financial Institutions Act (Bafia).
In fact the alleged “improper conduct” was first exposed by the 2010 Auditor-General’s Report. Rafizi merely followed this up with a further in-depth investigation. And like all forensic investigations, financial accounts are needed to back up one’s honest and reasonable belief of something gone wrong.
In any event, the police are obliged under the Act to investigate and recommend whether to prosecute the wrongdoer or not. The police must then call for the documents from the financial institution – as even a rookie investigator will tell you. Section 99(1) of Bafia permits disclosure which is authorised under any federal law to be made to a police officer investigating into any offence under such law. This would involve disclosure of the accounts and affairs of the person suspected of the offence.
Again now with regard to the IMDB exposure the IGP aims to shoot the messenger.
Is it not about time for this farcical and flagrant defiance of the law (which worldwide popular sentiment supports) to be brought to an immediate halt by the minister in charge?
Gurdial S. Nijar is Professor at the Law Faculty, University of Malaya, and HAKAM Deputy President.
Backgrounders & Related Articles
- Probe into TRX leak [11 May 2015]
- Citizen Nades – Why harass the whistleblower? [10 May 2015]
- CF requests Tabung Haji to be transparent over all their investment deals [10 May 2015]
- Kedah MB questions LTH’s land purchase from 1MDB [10 May 2015]
- Penang CM questions need to investigate LTH-1MDB deal under OSA [8 May 2015]
- Goodbye to Whistleblowers – Syahredzan Johan [4 Nov 2013]
- More protection for whistleblowers [2 Jun 2013]
- Whistleblower Protection Act 2010 (Act 711)