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Tuesday, November 30, 2021

Whistleblowers must be genuinely protected


Some weeks ago, Minister in the Prime Minister's Department (Parliament and Law) Wan Junaidi Tuanku Jaafar informed Parliament that amendments to the Whistleblower Protection Act 2010 ("WPA") are being studied and evaluated by the government, and will be tabled to the Cabinet next month.

The minister told Parliament that there had been 73,545 complaints received under the Act since 2011, but only 527 of those complainants received protection under Act 711.

"This is a very small percentage of those who have received protection, and it either shows flaws in the enforcement of the law or actual weaknesses in its legal framework and provisions, and that is why we are currently studying amendments to the Act," he was quoted to have said.

According to him, there are seven issues in the WPA which have been identified and will be improved. He cited, amongst others, several sections which are being studied.

While these reviews are timely and much needed, it is hoped that the government will truly have the political will to amend the fundamental weaknesses of the Act.

The WPA has been around for more than a decade since it was made law in 2010. It was enacted to give protection to whistleblowers.

The Act was designed to facilitate disclosures of improper conduct in the public and private sector, protect them from detrimental action, and provide for investigations to be carried out, amongst others.

According to the Act, a 'whistleblower' is any person who makes a disclosure of improper conduct to an enforcement agency.

Meanwhile, according to the Act, ' improper conduct would be any conduct that constitutes a disciplinary or criminal offence.

Once a whistleblower makes a disclosure to an enforcement agency, the whistleblower shall be conferred protection under the WPA 2010.

This protection comes in three forms.

First is the protection of confidential information. The whistleblower's confidential information, such as information about identity, occupation, address or whereabouts of the whistleblower, shall not be disclosed in any civil, criminal or other proceedings.

The second is immunity from civil and criminal action. The whistleblower shall not be subject to any civil or criminal liability for disclosing improper conduct.

The third is the widest form of protection – that against 'detrimental action'.

Flaw in the Act

'Detrimental action' 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.

The Act empowers enforcement agencies to investigate complaints of detrimental action and allows the court to order damages, compensation, injunction and other remedies against the party who makes the detrimental action.

One major flaw in the Act is that the disclosure made must not be prohibited by any written law.

This would mean that disclosure of matters covered by the Official Secrets Act 1972, for example, would not attract protection under the WPA 2010.

Consider the offence under Section 203A of the Penal Code of 'disclosure of information'. Under the section, a person who discloses any information or matter which he has obtained in the performance of his duties, or the exercise of his functions under any written law, commits an offence.

So, for example, if an individual uncovers improper conduct in a ministry, but that information is classified by the Official Secrets Act (OSA), even if he discloses it to an enforcement agency, he will not be accorded protection under the WPA.

Laws such as the OSA and Section 203A of the Penal Code resulted in many whistleblowers and potential whistleblowers not falling under the ambit of protection within the WPA.

Excluding disclosures that are prohibited under the law is a major weakness in this Act. If the government truly intends to give proper protection to a whistleblower, this must be addressed. - Mkini

SYAHREDZAN JOHAN is a civil liberties lawyer and political secretary to Iskandar Puteri MP Lim Kit Siang.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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