Whistleblowers: Shining knights of the 21st century

FMT LETTER: From M Saravanabavan, via e-mail

Modern day corruption is endemic in character and contributes to poverty. It is a plague that affects all levels and aspects of society from business and politics through to government. It is damaging to a country because decisions are taken not for the public benefit but to serve private interests. The recent Copgate scandal is a stunning example of this phenomenon.

It is now reported that a judicial tribunal will not be set up to investigate the parties involved in the Copgate scandal due to insufficient evidence adduced. This is notwithstanding the fact that several police officers directly connected with the Copgate scandal were willing to blow the whistle against the Attorney General and Inspector General of Police for interfering with the investigation of one Goh Cheng Poh aka Tengku Goh, the Johor Kingpin, in 2007.

The problem with corruption is that it is a hidden activity and the major difficulty when dealing with a hidden crime like corruption is its detection. Exposing cases of corruption using traditional investigative techniques can take years and a highly sophisticated team of experts with substantial resources. Even after spending a considerable time on investigations, it is not unusual for the prosecuting authorities to drop a case owing to lack of evidence.

Enforcement authorities therefore find investigating and the gathering of evidence extremely difficult with the result that there are hardly any prosecutions against those who engage in this activity even in developed countries. In a developing country like Malaysia which lacks the necessary expertise and resources, corrupt practices could be exposed from within an organisation by good willed informers. Investigations to a large extent will then rely on third party informers coming forward with vital information. These third party informers are often referred to as “Whistleblowers”.

If a significant number of potential Whistleblowers with inside information about the Copgate scandal step forward, the current government may be persuaded to establish an impartial body to oversee the dispensation of justice and expose the corruption inherent (if any) in the Copgate scandal.

However, there will be one particular question lingering in the minds of potential whistleblowers. How can the law protect us?

The answer lies in the recently enacted Whistleblower Act 2010. On Dec 15, 2010, the Malaysian Whistleblower Act 2010 came into force. This Act is intended to be a branch of public interest dimension of disclosure. The legislation marks a great step for the protection of Whistleblowers bringing Malaysia on par with developed countries like United States, United Kingdom, Australia, New Zealand and Canada which have provided a comprehensive or very specialised legislation on whistleblower protection.

The aim of the Act is stated in its preamble that this is ‘An Act to combat corruption and other wrongdoings by encouraging and facilitating the disclosure of improper conduct …’

It would appear from the preamble that prevention and conviction of corruption is the overriding public interest to justify the broad spectrum of protection afforded to the Whistleblower under this Act.

The 2010 Act defines a whistleblower as ‘any person who makes a disclosure of improper conduct to the enforcement agency…‘.

What is meant by improper conduct? Improper conduct, the subject matter of the disclosure, is defined as ‘any conduct which if proved, constitutes a disciplinary offence or a criminal offence’.

The above definitions taken as whole mean whistleblowers will play an important part in exposing the various unsavory and unscrupulous acts by organisations and public bodies. Whistleblowers will help combat corruption by exposing the wrongdoings of the organisations or public bodies and protect those who are in the organisation itself, as well as the society.

The invaluable contributions by whistleblowers can be demonstrated by The Challenger space shuttle explosion that occurred in 1986. Three engineers decided to blow the whistle on the National Aeronautics and Space Administration (NASA), and revealed how the launch was still set to go as scheduled, even after they had expressed their concerns over the seals that connected the solid rocket booster joints on the space shuttle. The Challenger exploded and Roger Boisjoly, one of the whistleblowers testified against NASA. In January 2001, Boisjoly was honoured as the James T Pursell Sr Distinguished Fellow in Management Ethics at Auburn University for his heroic endeavours.