Whistleblowers need more protection

  • A Humble Submission
  • Thursday, 22 Feb 2018

THE conviction of Pandan MP Rafizi Ramli and former bank clerk Johari Mohamad and their 30-month jail sentences under the repealed Bank­ing and Financial Institutions Act (Bafia) have raised many questions.

They were found guilty in relation to the revelation regarding the bank account statements belonging to the controversial National Feedlot Corporation (NFC).

This article shall not delve into the merits of the case.

It has been reported that both of them will appeal the conviction and sentences. They will be able to ventilate their arguments in the appeal.

But the prosecution of Rafizi and Johari for an act of whistleblowing indicates the need for better protection for whistleblowers.

Whistleblowers usually are people within an organisation or structure who, in the course of their work, came across information relating to wrongdoings or corruption.

If these potential whistleblowers are not protected, they will not come forward with the information that they possess.

If these people do not come forward with the information, wrongdoings within the organisation may never be known.

We have a Whistleblower Protec­tion Act (WPA) enacted by Parlia­ment to give protection to whistleblowers. Unfortunately, the Act is not able to protect whistleblowers.

For one, a whistleblower is not protected if the disclosure made by the whistleblower is contrary to any written law.

For example, a whistleblower who discloses information classified as official secrets will not be protected, since the Official Secrets Act (OSA) prohibits such a disclosure.

In the context of Rafizi and Johari, what they have been found to have done is contrary to the provisions of Bafia, a written law, and so the protection under the WPA did not avail them.

If we consider the fact that there are a host of laws in this country that prohibit disclosure of certain information, apart from the OSA and Bafia, many whistleblowers and potential whistleblowers will not fall under the ambit of protection within the WPA.

Excluding disclosures that are prohibited under the law is a major weakness in this Act.

Parliament should review the WPA and amend it to ensure that it is effective in protecting whistleblowers.

The Act must truly be able to protect whistleblowers if we are serious about combating corruption and wrongdoings. If not, no one will be willing to come forward for fear of repercussions.

Yes, it may be the case that in whistleblowing, the whistleblower may have breached certain written laws.

But if we are serious in combating wrongdoings in our country, if we say that corruption is like a cancer in society, then we must place priority in obtaining the information that would lead to the prosecution of corruption.

If that means giving protection to those who break the law in order to expose the wrongs in an organisation, it is a price that we should be willing to pay.

Syahredzan Johan is a partner of a legal firm in Kuala Lumpur with an interest in the laws that shape our country. He can be reached at syahredzan.johan@gmail.com. The views expressed here are entirely the writer’s own.

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