Do not ‘shoot’ the whistleblower – Syahredzan Johan

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Source: The Star Online

BY SYAHREDZAN JOHAN

Syahredzan Johan - file pic

Syahredzan Johan – file pic

There is perception, not unwarranted, that the authorities are more interested in going after those who expose wrongdoings, rather than those who actually committed the offence. In other words, the authorities are more likely to take action against whistleblowers, rather than wrongdoers.

Recently, someone cheekily tweeted a scenario where a person makes a report to a police officer about money stolen from a mosque. When asked what proof he had, the CCTV footage of the perpetrator was shown. The officer’s response was to investigate how the CCTV was obtained, ignoring the actual crime.

It is true that sometimes the disclosure of information by the whistleblower is crime. We have a whole host of laws that make it an offence for individuals to reveal information that they possess. The Official Secrets Act (OSA), for example, criminalises disclosure of information that is classified as an “official secret” by unauthorised persons.

Meanwhile, the Penal Code criminalises the unauthorised disclosure of information by those who obtain that information through their work as a public servant. For information relating to bank accounts, there are also laws, which makes it a crime for someone to give such information to others.

Whistleblowers usually are people within the organisation or structure, who came across the information in their line of work. If we do not protect these whistleblowers, they will not come forward with the information that they possess. If these people do not come forward with information that they possess, wrongdoings within the organisation may never be known.

We have a Whistleblower Protection Act (WPA), but it is an ineffective piece of legislation. For one, a whistleblower is not protected if the disclosure made by the whistleblower is contrary to any written law. So a whistleblower that discloses information classified as official secrets will not be protected since the OSA prohibits such a disclosure.

The WPA also requires the disclosure to be made to an enforcement agency. Once a disclosure is made by the whistleblower to an enforcement agency, the whistleblower shall be conferred protection under the Act. This protection comes in three forms.

The first is protection of confidential information. The whistleblower’s confidential information such as the information about identity, occupation, address or whereabouts shall not be disclosed in any civil, criminal or any other proceedings. If there are records of the confidential information contained in any documents in evidence, for example, the information can be concealed from view or obliterated to protect the whistleblower.

The second is immunity from civil and criminal action. The whistleblower shall not be subject to any civil or criminal liability for making a disclosure of improper conduct. However, the protection may be revoked if the whistleblower himself has participated in the improper conduct disclosed. This would preclude those who have seen the “error of their ways” to come forward and provide disclosure, as any protection accorded to them may be revoked.

The third is the widest form of protection, that against “detrimental action”. This includes any action causing injury, loss, damage, intimidation or harassment and any adverse treatment or action whether it is in employment, trade, business or protection of a person because the whistleblower has made a disclosure of improper conduct. So for example, an employee who has made a disclosure against his or her employer cannot be dismissed from employment by virtue of his or her whistleblowing. The Act empowers enforcement agencies to investigate into complaints of detrimental action and allows the court to order damages, compensation, injunction any order remedies against the party who makes the detrimental action.

But our enforcement authorities are suffering from a trust deficient. The public do not have faith that an investigation will be carried out openly and thoroughly on the allegations, especially if that wrongdoing is within the enforcement authority itself. When there is a lack of faith in the enforcement agencies, the whistleblowers will not report it to them and will instead choose other ways of making the information public.

We need to review the WPA and make amendments to the law in order to ensure that it can truly protect whistleblowers. At the same time, our authorities need to be clear on what should be prioritised. While it may be so that the disclosure of information by the whistleblower may run afoul of the law, the authorities should prioritise investigations on the wrongdoing that has been exposed instead of investigating and prosecuting the whistleblower. The authorities should focus on the bigger picture and the larger issue of corruption and mismanagement, instead of on smaller issues such as unauthorised disclosure.

Unfortunately, recent episodes of whistleblowing have shown that the authorities seem more intent on shooting the messenger, instead of investigating the message.

> The views expressed are entirely the writer’s own.