LETTER | Whistleblowers need more than just protection

LETTER | Dear editor, I refer to your headline, “Company deputy director, individual charged under Whistleblower Protection Act" on Sept 18, 2020 at 15:30pm under Bernama.

He was charged under Section 10(3)(b) of the Whistleblower Protection Act 2010, which carries a fine of not more than RM100,000 or a jail term of up to 15 years or both if found guilty. The charge under this Section is the first in history since the Act came into force in 2010.

Whistleblowers must be protected, and not prosecuted, to fight corruption. And corruption cannot be tackled without a citizenry willing to blow the whistle. Technically, a whistle-blower is a person who exposes information or activity that is deemed illegal, unethical, or not transparently-correct in an organisation that is either private or public and because of this exposé, there must be laws to protect whistleblowers.

While whistleblowers often pay a high price by taking a personal risk in reporting suspected or actual bribery and other noncompliance, they must have legal protection in the form of guaranteed confidential reporting and anti-retaliation protections. They must have private rights of action to sue the organisation or directors for damages as a result of discriminatory or retaliatory behaviour.

Starting in 2021, all 28 EU member states will have to meet minimum standards as provided by the EU Whistleblower Protection Directive (2019/1937) on creating free-speech protection for whistleblowers and employees who challenge illegality or abuse of power that betray the public trust.

This new directive to protect those who report on breaches of Union law protects whistleblowers and encourages people to report wrongdoing, through whichever route they consider appropriate.

Meanwhile, the International Organization for Standardisation ISO/TC 309 Working Group 3 has designed and developed a Whistleblowing Management System Guidelines standard (ISO 37002). This international standard enables the internal reporting of and dealing with reports about wrongdoing, and individuals involved in that process.

This document provides guidance for establishing, developing, implementing, evaluating, maintaining, and improving a whistleblowing management system through trust, impartiality, and protection throughout the stages of the whistleblowing cycle in and by an organisation. This ISO 37002 Guidelines standard is expected to be published by June 2021.

On several occasions, MACC has also indicated that there will be a review of this Whistleblower Protection Act 2010 as there is a need to change and amend it to be in accordance to suit current situations and requirements.

We strongly urge for MACC to look into both the EU Whistleblower Protection Directive and the ISO Whistleblowing Management System Guidelines for further inputs before the bill is drafted. The bill should be able to protect whistleblowers if the disclosures are made to any of the law enforcement agencies.

The bill should also provide help to whistleblowers if they:

a) Have not received any response from internal and/or external reporting channels within a set time frame

b) Have reasonable grounds to believe the breach constitutes an imminent danger to the public

c) Fear a risk of retaliation, or

d) Believe it is unlikely that the wrongdoing would be effectively addressed due to the particular circumstances of the case

KM LOI is president of the Association of Anti-bribery Management System Practitioners Malaysia.