©The Star (Used by permission)
A Humble Submission BY SYAHREDZAN JOHAN
IN 2010, the Whistleblower Protection Act came into force. The Act was designed to facilitate disclosures of improper conduct in the public and private sector, to protect them from detrimental action and to provide for investigations to be carried out, amongst others.
According to the Act, a 'whistleblower' is any person who makes a disclosure of improper conduct to an enforcement agency.
Meanwhile, 'improper conduct' according to the Act, would be any conduct which constitutes a disciplinary or criminal offence.
Once a disclosure is made by the whistleblower to an enforcement agency, the whistleblower shall be conferred protection under the WPA 2010.
This protection comes in three forms.
First is the protection of confidential information. The whistleblower's confidential information, such as the information about identity, occupation, address or whereabouts of the whistleblower shall not be disclosed in any civil, criminal or any other proceedings.
Second is immunity from civil and criminal action. The whistleblower shall not be subject to any civil or criminal liability for making a disclosure of improper conduct.
The third is the widest form of protection – that against 'detrimental action'.
'Detrimental action' includes any action causing injury, loss, damage, intimidation or harassment and any adverse treatment or action whether it is in employment, trade, business or protection of a person because the whistleblower has made a disclosure of improper conduct.
The Act empowers enforcement agencies to investigate into complaints of detrimental action and allows the court to order damages, compensation, injunction any order remedies against the party who makes the detrimental action.
One major flaw in the Act is that the disclosure made must not be prohibited by any written law.
This would mean that disclosure of matters covered by the Official Secrets Act 1972 for example, would not attract protection under the WPA 2010.
This is also the reason why Pandan MP Rafizi Ramli's disclosure of relating to the National Feedlot Corporation would not be protected by the Act even if he made the disclosure to the authorities, as it is prohibited by the Banking and Financial Institutions Act 1989.
The effectiveness of the Act will be further weakened if an amendment to the Penal Code comes into force.
The Penal Code (Amendment) Bill 2013 was been passed by the Dewan Rakyat recently.
The Bill proposed several far–reaching amendments to the Penal Code.
What will impact whistleblowing in Malaysia is the proposed new Section 203A, which will create new offences of 'disclosure of information'.
Section 203A(1) provides that whoever discloses any information or matter which has been obtained by him in the performance of his duties, or the exercise of his functions under any written law, shall be punished with a fine of not more than one million Ringgit, or with imprisonment for a term which may extend to one year, or both.
Section 203A(2), meanwhile, provides that whoever has any information or matter, which to his knowledge has been disclosed in contravention of subsection (1), who discloses that information or matter to any other person shall be punished with fine of not more than one million Ringgit, or with imprisonment for a term which may extend to one year, or both.
So, for example, if a civil servant comes across any information or matter relating to corrupt practices, criminal action any other forms of improper conduct in the performance of his or her duties, he or she cannot disclose the information on pain of hefty criminal sanctions.
Similarly, the proposed amendment also criminalises any subsequent disclosure of the information obtained by the civil servant.
This would be applicable to journalists who report on the information or matter.
Section 203A is unbelievably wide. There is nothing to limit the operation of proposed section.
'Whoever', 'discloses', 'any information or matter' – the words used are not confined or limited to particular circumstances. This would lead to absurdity.
For example, officers from the Immigration Department sharing information in a press conference to journalists about a raid that the Department conducted would be guilty of the offence.
Journalists reporting on what was disclosed in the press conference would also be guilty of the offence.
In fact, if we follow the literal reading of Section 203A, even an innocuous act of responding to queries from the public may make a civil servant manning the information counter in government departments guilty of the offence.
This may be extreme examples, but it is what the proposed amendment provides.
When some MPs queried this in the Dewan Rakyat, it appeared that the Government's response was basically to try the section out first and make any amendments later after the amendment has been passed.
If this is the case, then what is Parliament's function if laws need not be debated and necessary amendments made before a bill becomes law?
Most importantly, this would mean that no civil servant can ever be accorded protection under the Whistleblower Protection Act, even if he or she made disclosures pursuant to the Act.
This is because disclosures by civil servants would essentially be prohibited disclosures as a result of Section 203A.
There should have been provisos to limit the application of Section 203A so that bona fide disclosures are not criminalised.
Another subsection to exclude disclosures of improper conduct or disclosures made pursuant to the Whistleblower Protection Act.
Unfortunately, suggestions to this effect by some Members of Parliament were unceremoniously shot down.
We are again seeing an example of how laws are being rushed without proper deliberation in Parliament.
A proposed amendment, flawed to the core, which will lead to absurdity has been passed in the Dewan Rakyat.
It will most certainly be passed by the Dewan Negara. Before long, we can say goodbye to whistleblowers from the civil service.
One wonders whether this is the actual intent of the Government in tabling the proposed amendment.