Basics of whistleblowing

THERE have recently been so many developments in Malaysia that I think it’s safe to say we have had enough “excitement” to last a lifetime. But there is one matter I would like to raise – whistleblowers.

Not very long ago, China’s Li Wenliang, the whistleblower doctor whom we have to thank for bringing Covid-19 into our collective consciousness, succumbed to the disease. While the disease continues to spread around the world now, Li has since disappeared from public memory. It becomes clear here that the treatment of whistleblowers seems to be generally inconsistent.

Li is somewhat revered outside of China, but within it, he was subjected to vilification by the authorities (although the government has since edified him).

The question is: Why is there such vindictive nature as to how whistleblowing is managed and viewed? This question is not specific to the Covid-19 outbreak. It is one that is universal in the context of whistleblowing.

A good example is the manner in which Chelsea Manning and Julian Assange are treated. To refresh one’s memories, Chelsea Manning is the Wikileaks whistleblower and Julian Assange is the founder of Wikileaks. The two whistleblowers are inextricably linked.

As to how they are treated, Manning was recently ordered back to prison and Assange remains in the maximum-security Belmarsh prison in London. Some violent criminal offenders get off with less than whistleblowers.

In Malaysia, there is the Whistleblower Protection Act 2010 (WPA). In name and on paper, this is a highly relevant and good safety measure for those who are at the end of day anomalies in the workplace, putting themselves at a huge risk in breaking open a secret.

But there is a lot to be said about the Act. For one, it is wafer-thin in that the provisions are few. The important issues – and these are issues that are tangible and can be felt – are that the disclosure (information leaked) cannot be prohibited by law (Section 6 of the WPA); disclosure can only be made to the government (Sections 6 and 8) and that certain whistleblowers cannot be protected under the Act (Section 11).

This leaves a small window of occasions where whistleblowing is allowed and the informant can be protected under the Act.

For a comparative assessment, the United Kingdom’s Public Interest Disclosure Act should be considered. In fact, in the UK and United States, there is an independent (oversight) authority that deals specifically with whistleblowing – the Public Concern at Work or PCaW (UK) and Government Accountability Project (US).

In Malaysia, a landmark case that is illuminating on the subject is Rafizi Ramli v Public Prosecutor [2014] 3 MLJ 114. This is a case that would be familiar to all Malaysians. What’s important about this case is that the whistleblower was not protected under the WPA because the information leaked was against the law – the now repealed Banking and Financial Institutions Act, which has been replaced with the Financial Services Act.

Another case is Rokiah Mohd Noor V. MPDNKKM & Ors And Another Appeal [2016] 8 CLJ 635, where the whistleblowers were not protected under the WPA because they had not made the disclosure to any enforcement agencies, a breach of Section 6 of the WPA, leaving them unable to seek protection under Section 10 of the Act.

To put this into context, a person can only count as a whistleblower if he or she is informing one of these enforcement agencies, namely the Malaysian Anti-Corruption Commission (MACC), Immigration Department, Royal Malaysian Customs Department, police, Road Transport Department, Securities Commission and the Companies Commission of Malaysia. The primary enforcement agency here would be the MACC, which has standard operating procedures on how whistleblowing is handled.

It could be said that whistleblowing is a relatively new term in the Malaysian legal vocabulary. The WPA was formulated in 2010, and before that there were no laws that truly addressed this not entirely new but somewhat unique action.

One could come to the conclusion that it was borne out of the Internet age and the fact that whistleblowing has become a global phenomenon.

As for why the subject of whistleblowing should be raised now, I’ll leave that to the reader’s speculation.


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