Australia’s first saint to be canonised, Sr MacKillop (1842-1909), was briefly excommunicated in 1871 for denouncing a paedophile priest. More recently, in 1998, Paul van Buitenen’s whistle blowing contributed to the resignation en masse of the EU Commission presided by Jacques Santer. Paul van Buitenen paid a heavy price for it at the time, in terms of his career. These examples seem to justify calls for whistleblowing legislation: such civic-minded people should be protected from retaliation.
Furthermore, by enacting Whistleblowing legislation, the law maker is clearly encouraging people to muster a sense of care for the general, public interest, which benefits from the exposure and eradication of corrupt acts and other wrongdoings. They are encouraged to pluck up the courage to point out and bring to light the wrongdoings of colleagues and superiors, although they have nothing to gain themselves, because the bigger, general good will be increased that way. In a subtle way, the legislator is also introducing an element of ‘divide and rule’: by encouraging people to tell on others, it creates a sense of insecurity amongst potential perpetrators: they cannot be sure that their subordinates / colleagues will not tell on them.
Does this make the Maltese Whistleblower Bill (MGG 08.10.10) a good one? The legislator's raison d'etre is certainly good: no steps should be spared in the fight against wrongdoing; every weapon in the armoury should be availed of in this regard.
As a law, it seems to be well thought out too. Not original; it seems to be heavily based on the English Public Interest Disclosure Act of 1998. Nothing wrong with that, as far as I am concerned. There is little point in trying to reinvent the wheel. In my opinion, the Bill is to be commended:
i. the definition of 'employee' for example, is wide, covering former employees, service providers and volunteers too (art. 2);
ii. wrongdoers cannot turn whistleblower to save their own skin (art. 5);
iii. the whistleblower's identity is protected (art. 6);
iv. the judicial remedies, including interim, and the granting of damages that actually extend to moral, seem adequate (art. 7);
v. the requirements of good faith, reasonable belief and absence of personal gain are fair criteria (art 9);
vi. the directing of protected information to specific entities for processing (Sections 2 & 3) is also a plus: not just any entity should be allowed to handle protected information. Whistleblowers should follow the pre-established procedure if they wish to claim immunity under this Act;
vii. the idea of having a two-step system of disclosure, and subjecting external disclosure to at least attempting internal first, is prudent: wash the dirty linen outside only as a last resort (art 15);
viii. the imposition of sanctions is a must and makes the law effective (art. 19);
ix. annulling clauses in contracts of service that seek to circumvent Whistleblowing legislation is also a plus (art. 21).
On the other hand:
i. why the exclusion from 'employee' of 'work or service performed in a professional capacity when such work or service is not regulated by a specific contract of service' (art 2) ? ;
ii. similarly, and subject to the Professional Secrecy Act art 6A(c) which in itself permits the disclosure of information to prevent offences etc, why specifically exclude information protected by legal professional privilege from 'protected disclosure' (art 10)? this way the wrongdoer can always trust his lawyer to not tell on him, and is ensured a fair trial should the matter come to court (precisely because he can trust his lawyer not to turn on him) ; on the other hand if the legislator wants to make things really difficult and uncertain for wrongdoers and potential wrongdoers, why not tempt lawyers to break ranks with their clients, just like employees are encouraged not to bear their superiors' secrets?
iii. art. 11 may require clarification: first it prohibits anonymous disclosures from protection, then it goes on to regulate the manner in which anonymous disclosures are to be processed. Personally, I would draw a line and require that whistleblowers must identify themselves or not have their case dealt with at all. Subject, of course, to article 6 on protection of identity;
iv. art. 12 '(1) Every employer must have in operation internal procedures for receiving and dealing with information...' seems a bit unrealistic for Malta, given the small size of the majority of local businesses (the bulk of businesses fall in the 'micro' category and employ up to ten persons only). Who out of the handful of employees is to take responsibility under the Whistleblower Act (receive the information, not divulge the identity to the superiors, etc.)? To be fair, the legislator catered in art. 14 (a), for situations where there are no internal procedures for whistleblowing in place. Presuming that the head or deputy head is not the person on whom the whistle is to be blown of course. An alternative could be to allow small businesses to create pools i.e. to appoint one independent 'whistleblowing reporting officer', to serve all the members of the pool;
v. the penalties in art. 19 also seem a bit low. Up to three months and / or a fine of up to 1,200 Euro, for being followed persistently, or having one's family threatened, strikes me as insufficient deterrent. To this I add that article 19 echoes closely the Criminal Code, articles 251A – 251C (on harassment) but, while the imprisonment term is similar, the fines in the Whistleblower Bill are lower. What the legislator had in mind, and why the penalties are not the same as in the Criminal Code, is not clear;
vi. the inclusion of the Ombudsman to receive external disclosures concerning activities of a Voluntary Organisation (Schedule) is unusual, given that the Ombudsman's jurisdiction is limited to the Public Sector. A possible alternative could be the Commissioner for Voluntary Organisations.
On a completely different level, while I understand the reasoning behind enacting a Whistleblower Bill, I cannot help but wonder whether having such a bill at all is, to an extent, self-defeating. The more I read about protection, interim orders, damages including moral, possibility of being pursued or having my family threatened, the more I realise how risky whistleblowing is and how much trouble a person can get into for taking such a courageous move. This awareness about the possible consequences of whistleblowing was probably lower before the legislator spelled them out in a Bill, attached to a promise of protection. Now potential whistleblowers might ask why do something for the common good, and then possibly end up in court seeking interim orders, suing for damages, etc.? Is it not better to just keep quiet? Without this law, those who wanted to undo wrongdoing would have done so anyway, come what may. And worked their way around the consequences, just like Sr MacKillop (whose excommunication was retracted) and Paul van Buitenen (whose career suffered only temporarily). With this law highlighting the risks, might people actually be more cautious and actually blow the whistle less than before?
