Friday 29 Mar 2024
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This article first appeared in Forum, The Edge Malaysia Weekly, on February 27 - March 5, 2017.

 

A new policy paper on the Whistleblower Protection Act 2010, in which the Institute for Democracy and Economic Affairs (IDEAS) calls for important changes in the law, points to a serious gap in the country’s governance culture.

In the paper entitled “A critical look into the Whistleblower Protection Act 2010”, IDEAS board member Christopher Leong, who is the immediate past chairman of the Bar Council of Malaysia, notes that only 0.3% of 8,953 cases reported to the Malaysian Anti-Corruption Commission in 2012, the latest data available online, were from tipoffs.

In comparison, 46.2% of fraud cases in the US were discovered due to whistleblowers, the paper states, citing 2008 figures.

The stark contrast ought to prompt deeper reflection among concerned Malaysians about the conditions that need to be fostered in order that whistleblowing as an expression of ethical culture can thrive in our society.

The analysis by IDEAS takes an important first step by identifying specific weaknesses in the Act that can explain why the law has failed to facilitate whistleblowing in a significant way.

To address the dearth of whistleblowers in the country, IDEAS proposes changes in three broad areas of the Act: protection for whistleblowers, independence of the Act and the whistleblower mechanism and procedures.

Currently, the types of restrictions that the Act places on whistleblowers mean that its efficacy as an instrument in the fight against corruption is rather limited.

For example, under the Act, whistleblowers can only report cases to enforcement agencies, and speaking to third parties like the press or politicians may result in a fine or imprisonment or both, the analysis points out.

Also, the Act specifies that disclosures are only allowed if they are not specifically prohibited by any written law, for example, the Official Secrets Act.

Indeed, such strong curbs on the scope for whistleblowing invite the question of whether the Act has been appropriately named.

More to the point, these obstacles to whistleblowing highlight the essential need for an enabling environment for good governance to nurture ethical practices in public life.

Clearly, fundamental democratic norms such as a free press and diversity in political representation must flourish in order that they can play their expected roles in society.

So, a reform of the Whistleblower Act 2010 can only be effective if the removal of restrictions proposed by IDEAS is effected in an enlarged democratic space.

The restrictive terms of the Act are further underlined by a clause that automatically removes protection for those who are participants or accomplices in the improper conduct. Another clause disallows disclosures by employees motivated by fear of dismissal or disciplinary action.

Naturally, the reforms to the Act proposed by IDEAS call for the removal of such constraints that are contrary to the spirit of transparency and accountability that form the basis of democratic rule.

Another serious flaw in the Act’s intent can be seen in its failure to insulate itself from the executive. Section 4 gives the minister complete discretion to direct the enforcement agency’s actions.

In its place, the policy paper proposes that ministerial oversight be removed by the creation of an independent authority, such as the office of an ombudsman to manage whistleblowers.

Plainly put, a whistleblower law that does not irrefutably establish its independence from the executive does not go far enough to do the job of facilitating the exposure of wrongful conduct in public office.

The third area of reforms proposed by IDEAS — covering the whistleblower mechanism and procedures — adds momentum to the drive to tighten the law in order to make it more effective.

The issues currently faced in this area include uncertainty over which agency a whistleblower should share his or her information with, opacity about the progress of investigations and broad discretion given to enforcement agencies to decide on the reward for whistleblowers.

Consequently, IDEAS proposes that a centralised unit be tasked with handling whistleblowing and raising public awareness of the process. For greater transparency about the progress of investigations, the think tank makes the logical proposal for a general timeline to be established and the informant to be updated accordingly.

As for rewards, IDEAS points out the example of South Korea, where the relevant authority can provide whistleblowers with rewards of up to US$2 million.

In sum, therefore, much groundwork needs to be done to rehabilitate basic democratic processes before the seed of whistleblowing can sprout in the garden of Malaysia’s democracy.

Some may argue that unless vigorous weeding continues unabated, whistleblowing and similar well-intended initiatives may become smothered by the undergrowth that has spread through the system.


R B Bhattacharjee is associate editor at The Edge Malaysia

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