A Whistleblower Protection Act needs to accompany proposed Freedom of Information Act
Friday, 30 January 2015 00:31
By S.W.R. de A. Samarasinghe and Tissa Jayatilaka
The presidential election results of 8 January suggest that a significant segment of our electorate concurred with the assertion of the then common Opposition that bribery and corruption that tainted the administration of the incumbent President Mahinda Rajapaksa which, in turn, tainted him, was a sufficiently serious flaw to deny him a third term.
Candidate Sirisena promised the Sri Lankan electorate that, if elected, he would wipe out corruption and establish good governance. This is, of course, much easier said than done in a society where corruption and the lack of respect for the rule of law have taken deep root in recent years.
In the 2014 Corruption Perception Index (CPI) of Transparency International (TI), in which higher the score lower the perception of corruption in the country concerned, Sri Lanka scored 38 out of a possible 100. Denmark came on top as the least corrupt country in the world with a score of 92 and Somalia came in last with 8.
As many as nine countries including India had a score of 38 and all were ranked number 85. All the other South Asian countries were below Sri Lanka and India. The TI ranking indicates that roughly about half the countries that were surveyed were perceived to be more corrupt than Sri Lanka or India and half less so.
Sri Lanka’s relative position has not changed much since TI started including the country in its annual survey in 2002. In that year we were 52nd out of 102 countries. In 2007 we were 94th out of 179, in 2010 91st out of 178 and in 2013 91st out of 177. The TI measurement suggests that during the Rajapaksa administration (2006-2014) corruption worsened slightly compared with the period 2002-2005 when Chandrika Kumaratunga and Ranil Wickremesinghe were in charge.
However, even if only a few of the allegations of corruption that have been made after 8 January against the Rajapaksa administration are found to be true, the TI assessment for the post 2009 period will have to considered a serious underestimation of the true situation. The implication of the foregoing is that President Sirisena has a major challenge on his hands to reduce corruption that appears to have taken root well before Rajapaksa assumed office.
Freedom of Information
One of the major tools to fight corruption that is included in the 100-Day Program of the new Government is a promise to introduce a Freedom of Information Act (FIA) in Parliament on Friday, 20 February. On Friday, 20 March, Parliament is scheduled to enact it into law.
We assume that the FIA will apply not only to the State sector but also to the private sector and Non-Government Organisation (NGO) sector of the country. Corporate good governance and good governance in the NGO sector are as important as good governance in the State sector.
The Sirisena administration has not announced the details of the proposed FIA. Usually under an FIA an individual or organisation can use the law to demand information from a government agency or, if the law permits, even from a private entity.
The manner of use of the information thus obtained is the responsibility of the individual or organisation that requests it. If the information thus obtained is to rectify a private injustice or grievance the matter may end there.
However, a person or persons or an institution can use the FIA to obtain information to pursue whistleblower action in the public interest. It is the latter course of action that makes a Whistleblower Protection Act (WBPA) necessary to protect those who take such action. If not, an FIA will be not very effective as a tool to fight corruption.
WBPA not only serves as a useful complement to an FIA by making the latter legislation more effective, but it also can serve as a tool on its own to fight corruption. That is because persons who become aware of bribery and corruption, violations of the rule of law, fraud, and deliberate neglect of enforcement of regulations that protect the public interest can via a WBPA bring to the notice of the public or higher authority any such malpractice.
President Sirisena’s 100-Day Program does not talk of a WBPA. However, in his manifesto, in addition to a FIA, he promises to stop “mega corruption” (p.20) and “remove obstacles to the activities of citizens’ organisations by encouraging citizen participation in economic, social and human rights activities” (p.17).
He also says: “While securing the human rights already enshrined in the Constitution, steps will be taken to further reinforce the rights of citizens” (p.17). Going further, Sirisena’s election manifesto promises “an efficient regulatory mechanism (that) will be instituted on the basis of encouraging public service communication services while consolidating to the maximum freedom of the mass media and the Right to Information” (p.54).
Hence if we consider carefully the many election promises in their entirety and interpret them imaginatively, it would not seem far-fetched to discover embedded in these promises an unstated commitment on the part of the new administration to a Whistleblower Protection Act. Such an Act will be a definite boost to several of the “Independent Commissions” (p.16), especially those with watchdog functions, which Sirisena has promised to establish.
There are at least 50 countries, big and small, rich and poor, in the world that have some form of Whistleblower Protection Laws in their statute books. The USA has the longest history in respect of such laws that goes back to the 1860s. The USA considers Whistleblower rights as a part of free speech under the First Amendment to the US Constitution. In most other countries these laws are relatively recent.
There are several Commonwealth countries including the UK, Canada, Australia, New Zealand, Ghana, Uganda and Jamaica that have whistleblower laws. India joined the ranks in May 2014 when the President of India signed into law The Whistle Blowers Protection Act of 2011. Sri Lanka should join this group if it is serious about advancing the cause of good governance. From a strategic point of view, the present time in the country offers the best opportunity for the introduction of a WBPA as almost everybody today is in the mood for good governance!
International experience with FIA and WBPA teaches us, among other things, the following lessons to make such laws effective:
Comprehensive and clear legislation must be enacted to protect whistleblowers from all forms of retaliation.
Usually it is not advisable to require whistleblowers to report a malpractice to their superiors in the organisation that they work.
An independent institutional mechanism that protects the identity of the whistleblower is the most effective method for reporting of wrongdoing and corruption. However, the whistleblower should have the right to go public if she or he so wishes.
All possible retaliatory actions must be clearly defined in law and must be robust to protect whistleblowers.
Remedies and sanctions for retaliation must be clearly laid down in law.
The public must be encouraged to report corruption and malpractice through regular awareness programs.
Regular evaluation of the law on whistleblowing and modification of the law as needed to suit changing circumstances improves robustness and effectiveness of the process.
In several of the countries that have enacted FIA and WBPA laws, the protection of whistleblowers from retaliatory action is a continuing serious concern. The revelations that are now being made following President Sirisena’s election suggest serious public misconduct possibly involving massive sums in public funds. The stakes are very high when whistleblowers reveal the truth in such situations.
Bloomberg News (October 19, 2011) reported that in India between January 2010 and October 2011 no less than 12 people were killed for revealing information on fraud or general public misconduct of a punishable nature. The Times of India (September 16, 2014) reported that over 40 were killed and “thousands” attacked since 2002 for whistleblowing. The law, therefore, must make special provision for the protection of whistleblowers.
In many countries there are institutions and programmes to provide protection to whistleblowers. For example, in the United States, Federal Government employees have legal protection if they provide information to the US Congress (Parliament).
Another option is to have an independent third party organisation that functions as the intermediary between the offending organisation or individual and the whistleblower. The complaint is made to a third party that assures total confidentiality to the whistleblower. This also gives the intermediary organisation time to check the veracity of the complaint, which in turn will help avoid embarrassment to innocent parties.
Canada has such an official setup under a Public Sector Integrity Commissioner. Netherlands has an office that provides advice to prospective whistleblowers. In India, although the law to establish whistleblowing was enacted in May last year, the enabling subsidiary rules to protect whistleblowers have not been drafted in a timely fashion.
The law must also provide for protection of, and where necessary, compensation for victims of false complaints by whistleblowers.
The Sirisena policy is committed to further strengthen Parliament. Political parties such as the JVP and JHU are also firmly committed to the same end. Thus those who support the further strengthening of Parliament should also ideally take up the case for a Whistleblower Protection Act.
Whistleblower laws have to take into account safeguards to protect “national security” information. There are some very distinct areas of national security that may be delineated and clearly defined under a well-drafted law that can thus be excluded from whistleblowing. There are manifold government activities that have nothing whatsoever to do with national security that can be brought under a WBPA. But there are likely to be some grey areas that need to be considered carefully when a WBPA is enacted.
A good recent example that came out of the USA is that concerning Edward Snowden who revealed information that belonged to the US National Security Agency (NSA). Snowden had to seek asylum in Russia to escape prosecution. What must be avoided in this regard is the use of a disingenuous excuse such as “national security” by the state to prevent the public from securing information that it has a right to in a functioning democracy.
It may be possible for the Government to combine FIA and WBP into one bill. The new Minister of Justice Wijeyadasa Rajapakshe who is a suitably qualified and respected lawyer with a sound record on human rights should be able to make a determination on this issue.
In the interim, those who have something to reveal – whether it is about the former Government or even the new Government – could seek the assistance of International Whistleblowers that operate from New Zealand. They guarantee total confidentiality to anybody from any country in the world that wants to inform them of corrupt practices. You can reach them at www.internationalwhistleblowers.com.
If the Sirisena/Wickremesinghe administration were to drag its feet on this much-talked-about need for a significant reduction if not elimination of corruption in our society, getting hold of those Whistleblowers Down Under may be a way out.