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Thursday, August 9, 2012

The whistleblower law is just hot air

By Eric Paulsen | FMT

The Whistleblower Protection Act (WPA) is a lot of hot air simply because it is one of those false progressive laws (like the Peaceful Assembly Act and the Security Offences [Special Measures] Act) that the Najib administration is good at doing but does not bear out upon closer scrutiny – a false democratic rebranding exercise devoid of substance and merit.

The WPA is rendered virtually ineffective and meaningless by at least three highly questionable provisions that are incompatible with the purpose of enacting such a law in the first place (i.e. to combat corruption and wrongdoings by facilitating disclosures and to protect whistleblowers) and the standard provisions in other countries with proper whistleblower protection framework.

First, according to the proviso in Section 6 (1) of the WPA, the disclosure will not fall under its protection if the disclosure is prohibited by any written law, in Rafizi Ramli, PKR strategic director and Johari Osman, former Public Bank clerk case, the Banking and Financial Institutions Act (BAFIA) that prohibits unauthorised disclosures, and in many other cases, the bĂȘte noire of whistleblowers – the Officials Secrets Act that confers absolute discretion to the relevant authorities to classify any official document as “official secret” that cannot be questioned in court even though it may not be a secret or security risk and its exposure is in the public interest.

Second, Section 11 (1) (d) of the WPA states that the whistleblower protection conferred can be revoked if the “disclosure of improper conduct principally involves questioning the merits of government policy, including policy of a public body” – surely a preposterous and an “unclear of the concept” provision, as in most cases of serious or systemic wrongdoings of public bodies, this will involve questioning the merits of government and public body policy.

Third, Section 8 of the WPA further criminalises the whistleblower if he were to divulge the wrongdoing to another party (including to the press or members of Parliament) once he has invoked the “protection” of the Act – an offence punishable with a fine up to RM50,000 and/or imprisonment up to ten years.

Applying these oppressive provisions to Rafizi and Johari, do we for a moment think that the NFC scandal would have been exposed leading its chairman Mohd Salleh Ismail, husband of Shahrizat Abdul Jalil, former minister of women, family and community development to be charged for criminal breach of trust?

If both of them had gone to the MACC and invoke the WPA procedure, do we really think the MACC and AG’s Chambers would all of a sudden become independent and competent and swoop down on the NFC? Would the culture of secrecy, lack of transparency and accountability, let’s protect the rich, powerful and well-connected suddenly disappear?

Absolutely not.

Whistleblowers in dilemma

Rafizi and Johari would still have been shot like all messengers bearing bad news, just like many others before them who had exposed government-linked corruption and wrongdoings.

How else would corruption, criminal breach of trust, money laundering and tax evasion be exposed if not through banking details? Their prosecution is absolute proof the AG’s Chambers remains highly politicised and bias as their disclosure had exposed a serious criminal offence which should override any confidentiality provisions, including the BAFIA.

Let us be clear, without any media and public pressure, the whole NFC scandal would simply have been hushed up.

The investigating and prosecuting authorities would have blocked the NFC scandal and may well say the disclosure breaches BAFIA and therefore could not properly be considered whistleblowing under the WPA.

If both of them persisted, the authorities may even threaten them with criminal prosecution, and in the end, nothing would have been exposed and no one brought to account.

Or even if the disclosure amounted to whistleblowing under the WPA, the authorities may decide to revoke the protection conferred as the disclosure had involved questioning the merits of government policy and both can then be subjected to reprisal including civil and criminal actions.

And finally, they would be trapped as once the WPA was invoked, they could not now speak to the press or members of Parliament even in good faith as they may then be jailed or fined for breaching the protection of “confidential information” that they have disclosed in the first place.

The WPA is clearly not a proper whistleblower protection law enacted to serve the public interest or to combat corruption. It is designed to place potential whistleblowers in a dilemma, to pressure them to go through a false whistleblower protection procedure where very little will be done, and more importantly, to stop them from going to the press and opposition politicians.

Eric Paulsen is co-founder and adviser to Lawyers for Liberty, a human rights and law reform organisation.

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