Whistleblowing law premised on coming forward in good faith

 

From Walter Sandosam

Much is being said by various parties about an alleged conversation about money and possible corrupt activities involving some state assemblymen.

Let’s first be clear on the provisions of the Whistleblower Protection Act 2010 (WPA) and the spirit under which it was first conceived and subsequently came to be enacted.

It is an Act to combat corruption and other wrongdoings by “encouraging and facilitating disclosures of information” about any corruption or other misconduct. It will consequentially provide protection to whistleblowers.

Following on, those who come forward in good faith with information on actual or potential improper conduct are protected under the WPA.

Therein lies the essence: “coming forward in good faith”.

It is not meant to provide protection for those whose hands are already dirty.

On the surface, as reported, it appears that a certain individual has some information on certain parties involved in unsavoury practices. The crux of the matter is that the informant wants protection under the law so that he will not himself be investigated.

It is a paradox. If one is reporting on, and at arm’s length from, a corrupt act being committed, why would there be a need for a written guarantee from the Malaysian Anti-Corruption Commission. Are we implying here that the MACC can be biased?

This could be perceived also as the informant gunning for a “shield of immunity” for his own participation in this specific episode of alleged corruption.

It appears to be a case of reverse piety. I will tell you about other bad guys but don’t investigate me on any level. It smells dirty.

The MACC has made it clear that investigations will be compromised if reports of corrupt actions are already in the public realm. Despite this, we have an MP asking for details so that the alleged corrupt practices can be brought up to Parliament. One does not need such drama here.

At the end of the day, it is premature and should not be the norm for the MACC to give out guarantees of non-investigation of the informant. If the informant has indulged, he should be prosecuted to the full extent of the law. The WPA is not a “do not go to jail” card one can avail himself of!

It is disastrous to the cause to hide behind lawyers in representations to the MACC and try to exploit loopholes in any enactment for self-interest. Such actions defeat efforts to curb corruption.

Writing to the prime minister asking for his indulgence in the matter is by itself compromising the independence of the MACC. More so when the MACC itself has only been provided with snippets of purported video recordings.

Such recordings may be inconsequential and, more dangerously, taken out of context. They may not be able to stand up to scrutiny in the courts.

The claim, if news portals are correct, that “it would heighten the government and MACCʼs (reputation) for integrity, not only in the eyes of Malaysians but also internationally” is again absolute nonsense.

The moment, if ever, that the MACC is “instructed” as to what to do by the Executive on any investigation, its independence goes flying out the window. How does one balance that?

The MACC should stand firm in its position of not issuing any form of written guarantees as it would compromise the institution.

If such requests are made, especially on behalf of clients, it should be based on some semblance of intelligent thought. This appears to be severely lacking in this episode.

At the end of the day, if any immunity is to be granted or if plea bargaining is involved, it should be up to the attorney-general and not investigators who are tasked with taking a holistic approach in their work.

As a corollary, amendments to the WPA should be sped up, as from my own experiences with the MACC, the legislation is far from robust enough to address the needs. Legislators should stop dragging their feet if they are serious about efforts to improve on world anti-corruption index rankings.

We need to get our priorities right here and refrain from meaningless meanderings. If one is afraid of being called up, then rethink the issue! - FMT

Walter Sandosam is a past member of MACC’s independent operations review panel.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.