Act protects genuine whistleblowers

As published in Malay Mail today

By Jahaberdeen Mohamedd Yunoos

IN the midst of seeming confusion surrounding the business of 1MDB, there appears to be a major confusion among some sectors of the public on what a “whistleblower” is in law.

A whistleblower, in law, is not someone who whistles any tune or music loudly in public with the purported motive of disclosing a wrongdoing by some government department. If that was the legal position, then any number of government agencies can be vilified and undermined in public on the pretext of whistleblowing.

Likewise, writing a blog article for example, based on so-called inside information, to disclose a purported wrong by say, a minister or a ministry, also does not qualify as whistleblowing in law. The blog writer, contrary to his expectations, could end up committing various crimes and may even face potential civil liability if his accusations of wrongdoings are levelled at individuals.

For this reason and reasons that follow herein, I am quite surprised why quite a few refer to the Sarawak Report as a “whistleblowing site” because, at best, what is reported are allegations which are not proven in accordance with the law. At the bottom end of the spectrum, they may have committed serious crimes, including breach of national security, if indeed they had obtained leaked information from government agencies.

There is a specific definition of who a whistleblower is in law. A “whistleblower” is specifically defined as “any person who makes a disclosure of improper conduct to the enforcement agency under section 6” of the Whistleblower Protection Act 2010 (Act 711).

The Act is a powerful tool to combat corruption where the Act itself provides it is “an Act to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector, to protect persons making those disclosures from detrimental action, to provide for the matters disclosed to be investigated and dealt with and to provide for other matters connected therewith”.

So clearly, the Act seeks to encourage citizens to disclose information relating to corrupt practices and improper conduct by providing legal protection to the whistleblowers.

“Improper conduct” means any conduct which if proved, constitutes a disciplinary offence or a criminal offence, for example, giving or receiving bribes.

The Act covers both the public and the private sector.

However, while the whistleblower is given protection under section 7 of the Act, he himself must disclose in accordance with the law. This is to balance interests which may sometimes conflict.

Hence, section 6.(1) of the Act provides that “a person may make a disclosure of improper conduct to any enforcement agency based on his reasonable belief that any person has engaged, is engaging or is preparing to engage in improper conduct: Provided that such disclosure is not specifically prohibited by any written law”. Hence, the disclosure must be to an authorised person or an enforcement agency and not to the media.

Once the whistleblower discloses the relevant information to the enforcement agency, section 7 of the Act confers the following protection to the whistleblower namely, (a) protection of confidential information; (b) immunity from civil and criminal action; and (c) protection against detrimental action. The Act actually provides comprehensive protection to the genuine whistleblower including ensuring he does not consequently suffer loss of income or employment and security of personal safety.

This protection however may be revoked.

Section 11 (1) of the Act provides that “the enforcement agency shall revoke the whistleblower protection conferred under section 7 if it is of the opinion, based on its investigation or in the course of its investigation that — (a) the whistleblower himself has participated in the improper conduct disclosed; (b) the whistleblower wilfully made in his disclosure of improper conduct a material statement which he knew or believed to be false or did not believe to be true; (c) the disclosure of improper conduct is frivolous or vexatious; (d) the disclosure of improper conduct principally involves questioning the merits of government policy, including policy of a public body; (e) the disclosure of improper conduct is made solely or substantially with the motive of avoiding dismissal or other disciplinary action; or (f) the whistleblower, in the course of making the disclosure or providing further information, commits an offence under this Act”.

As we saw earlier, the Act protects genuine whistleblowers and not those who have obtuse motives such as throwing sand into someone else’s rice bowl, character assassination or committing some offence under the law.

Hence, under section 21 of the Act, any person who wilfully makes in his disclosure of improper conduct or 

complaint of detrimental action a material statement which he knew or believed to be false or did not believe to be true commits an offence.

Whenever one thinks about whistleblowing in law, one should not forget other aspects of governance and life that other laws seek to protect such as safeguarding national security, and so on.