The long-anticipated Whistleblower Protection Bill 2010 was tabled for first reading in Dewan Rakyat today, aimed at curbing corruption and malpractice in both the public and private sectors.
Deputy minister in the Prime Minister's Department, Liew Vui Keong, tabled the Bill, which contains 27 clauses and seven parts.However, the efficacy of the draft law has been immediately called into question by a caveat under Section 6(1) that disclosures should not be specifically prohibited by any written law.
This appears to mean that information protected by the repressive Official Secrets Act, for example, cannot be revealed.
The Bill is intended to:
- combat corruption and other wrongdoing by encouraging and facilitating disclosures of improper conduct in the public and private sector;
- protect persons making those disclosures from detrimental action; and
- provide for the disclosures to be investigated and dealt with.
Opposition parties and many civil society groups have long urged the government to enact protection for whistleblowers, believing this will encourage more reports against corrupt practice.
Premier and Finance Minister Najib Abdul Razak then pledged to bring in the law this year, when delivering the 2010 Budget speech last October. He said this would be among measures aimed at curbing corruption. Wikipedia says the term 'whistleblower' was derived from the practice of English police officers, who would blow their whistles when they noticed the commission of a crime. The whistle would alert other law enforcement officers and the general public of danger.
The entry describes a whistleblower as "a person who raises a concern about wrongdoing occurring in an organisation or body of people". Usually this person is from the same organisation.
The revealed misconduct may be classified in many ways - for example, a violation of a law, rule, regulation and/or a direct threat to public interest such as fraud, health/safety violations and corruption.
Whistleblowers may make their allegations internally (for example, to other people within the accused organisation) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues).
However, they have frequently face reprisal - sometimes at the hands of the organisation or group which they have accused, sometimes from related organisations, and sometimes under law.
For this reason, many countries have moved to provide legal protection for whistleblowing. In the UK, for example, the law protects whistleblower from victimisation and dismissal.
Highlights of Malaysian Bill
Clause 6(1)
An individual can make a disclosure of improper conduct based on the reasonable belief that someone has engaged in, is engaging in or is preparing to engage in improper conduct. Such disclosure, however, should not be specifically prohibited by any written law.
Clause 6(2)
A disclosure can be made although the whistleblower is not able to identify the particular person and even if the improper conduct has occurred before the commencement of the Act. The disclosure can be made by anyone, whether an officer of a public or a private body.
Clause 7(1)
It protects confidential information, provides immunity from civil and criminal action and enables protection against detrimental action. Such protection is extended to anyone related to or associated with the whistleblower.
Clause 10(5)
No party can terminate a contract, withhold a payment that is due contractually, or refuse to enter into a subsequent contract against someone who had made a disclosure of improper conduct to an enforcement agency. This applies to the whistleblower as well his or her employer.
Clause 10(6)
Any individual found guilty of having taken detrimental action against a whistleblower - or any person related to or associated with the individual - can be fined up to RM100,000 or be jailed for a maximum of 15 years, or both.
Clause 11
This lists the conditions under which protection can be revoked - when:
• The whistleblower participates in the improper conduct disclosed;
• The whistleblower wilfully makes a disclosure of material statement which he knows or believes to be false or does not believe to be true;
• The disclosure of improper conduct is frivolous or vexatious;
• The disclosure of improper conduct principally involves questioning the merits of government policy, including policy of a public body;
• The disclosure of improper conduct is made solely or substantially with the motive of avoiding dismissal or other disciplinary action; or
• The whistleblower, in the course of making the disclosure or providing further information, commits an offence under the Act.
Clause 15(1)
Enforcement agencies are empowered to file applications in court on behalf of whistleblowers, to claim compensation, injunction or reliefs deemed fit by the court.
Clause 19(1)
A whistleblower who fears or whohas suffered detrimental action may ask the enforcement agency to request relocation of his or her place of employment. This also applies to any person related to or associated with the whistleblower.
Source: MalaysiaKini
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