Some months ago Professor Hoole, on behalf of the Ethics Committee of the Sri Lanka Association for the Advancement of Science (SLAAS), invited me to address this Seminar on Whistle-blowing. Presented by justice mark fernandoIn his letter he observed that the Institution of Electrical and Electronic Engineering stated in its Ethics Guidelines that members are encouraged to whistle-blow, but are not required to do so since it is likely to lead to loss of employment.
Whistle-blowing is not a subject to which I had devoted any particular attention, and Prof Hooles summary of the problem gave me much food for thought. It gave rise to several questions. If whistle-blowing is indeed something to be encouraged, then legally, morally and/or ethically whistle-blowing must be right and proper. It would also follow that there is a right to whistle-blow. Again, if whistle-blowing is worthy of encouragement, it cannot be misconduct. And if whistle-blowing is not misconduct, how could it ever result in any penalty at all, let alone the extreme one of loss of employment? Further, if whistle-blowing deserves to be encouraged (and not merely tolerated) should it not also be a duty legal, moral and/or ethical as well? Finally, is the right to whistle-blow confined to the public sector, or does it extend to the private sector?
Perhaps all of us have a sub-conscious prejudice against whistle-blowers. Whistle-blowing, after all, is just another term for sneaking, and from childhood sneaking is discouraged. Children are told, if you do something wrong, you must own up and take your punishment; and if someone else does something wrong, he must own up, and if he doesn’t, you don’t sneak on him. Of course, if that someone else happens to be someone you dislike, the temptation to sneak will often be irresistible! Furthermore, a child is taught that if he is a member of a team, then team spirit is important; and that it is disloyal to let the side down by disclosing the shortcomings of members of his own team. So, later, in adult life we join and work in various organizations with this in-built prejudice against sneaking, regarding it as something underhand, distasteful and disloyal; not the done thing. We are also conscious that if we expose the malpractices of others, they in turn may make allegations of misconduct against us, true or false. It is not surprising, therefore, that people who nevertheless wish to expose corruption often resort to anonymous letters.
However, today corruption and other forms of malpractice are so widespread both in the public sector and in the private sector, and cause such grave loss and damage to the whole community, that exposure must be encouraged, because without exposure past malpractice cannot be remedied, and future malpractice cannot be prevented. Individual prejudices and loyalties must give way to the public interest .
The SLAAS (as well as other professional bodies) may therefore usefully consider (a) the circumstances in which there is a right, and even a duty, to expose corruption in the public sector; (b) the limits of that right; (c) how that right should be recognised and enforced; (d) the legal protection to which whistle-blowers are or should be entitled; and (e) whether the position in the private sector should be any different. And it is on those points that I wish to share some thoughts with you this evening.
What is whistle-blowing? I would venture to define whistle-blowing as the voluntary disclosure, by a member, officer, employee or an agent of any organisation, of malpractice (whether actual, suspected or anticipated) within that organisation. I would include disclosure to authorities within that organization as well as public disclosure. Ordinarily, whistle-blowing would be intended to remedy some past wrongdoing and/or to prevent its recurrence.
What is malpractice? Malpractice would cover not only bribery and corruption, but all forms of malpractice prejudicial to employees, the public and the nation such as safety violations, nepotism, discriminatory and oppressive practices in employment, pollution and other environmental damage, misrepresentation and suppression of facts in regard to the quality of goods and services, revenue frauds, theft, misappropriation and resource wastage . I would exclude purely individual grievances, however genuine, of wrongful or unfair treatment.
The extent of malpractice in Sri Lanka cannot be disputed. In 1938 it was found that the allowances of no fewer than 14 out of the 50 elected members of the State Council had been seized under court orders. It is obvious that financial embarrassment is often a prelude to corruption. Accordingly, the Public Bodies (Prevention of Corruption) Bill was introduced in 1941, but was indefinitely postponed by the majority vote of the Councillors! On the very next day a resolution was moved calling for the appointment of a Commission to inquire into the charges of bribery and corruption made against Councillors. The LMD de Silva Commission was appointed under the Commissions of Inquiry Ordinance. Despite widespread rumours of corruption, only twelve persons volunteered to give evidence.
The Commission found five Councillors, out of the 50 elected members, guilty of corruption: i.e. one out of ten; and further reported that another four Councillors (unidentified) were in all probability also guilty . That was more than sixty years ago.
It is reported that a recent Marga survey of the Judiciary, covering 50 judicial stations (and over 80 different courts) sought information from judges, lawyers, court staff, and court users (such as civil litigants, virtual complainants, remand prisoners, prison officials, police officers, and the corporate sector). 41 judges, out of a total of 49 who responded to the survey, reported that they were aware of 226 incidents of bribery. 441 lawyers, out of 447 who responded, reported 771 incidents of bribery by lawyers. 107 court users, out of 879 who responded, admitted that they had resorted to bribery to expedite legitimate processes. A large majority of all respondents believed that the judicial system was corruptible.
An Australian writer, Stuart Dawson, refers to two public sector surveys, one in Australia and one in the USA, which revealed that about one-third of those surveyed had observed conduct in their workplaces which they believed to be illegal or unethical. What is more, a majority of that one-third believed that if they had reported such wrongdoing internally, (a) it was unlikely that something would be done about it, and (b) they would suffer official or unofficial reprisals. I doubt whether the situation in Sri Lanka is any better.
In both Australia and the USA there is whistle-blower protection legislation, but Dawson doubts the effectiveness of that legislation. In Sri Lanka there seems to be none. On the other hand, there are statutory provisions, and subordinate legislation, which appear to inhibit, if not to prohibit altogether, the exposure of malpractice.
Section 16 of the Sri Lanka Press Council Law, No 5 of 1973, makes it an offence punishable with imprisonment to publish in any newspaper any part of the proceedings of the Cabinet of Ministers, any document sent by a Minister to the Secretary to the Cabinet, and vice versa, and any matter which purports to be a Cabinet decision seemingly, even if publication was bona fide with the object of exposing malpractice or corruption.
There are many statutes, particularly in regard to financial institutions, which require employees to sign declarations pledging the observance of secrecy in regard to all transactions of that institution, except when disclosure (a) is required by the directors, or a court of law, or the person to whom a transaction relates, or (b) is in the performance of his duties, or (c) is in order to comply with any law.
This suggests that employees are prohibited from exposing corruption on their own initiative, and must wait until the directors or the court require them to do so. But if employees do not expose corruption, is it not likely that directors and courts will remain unaware of corruption? Section 45 of the Monetary Law Act, No 58 of 1949, goes even further, by providing that no employee shall be required to produce in any court any book or document or to divulge to any court any matter coming under his notice in the performance of his duties under that Act, except as may be necessary for the purpose of carrying into effect the provisions of the Act. Once again, even exposure of malpractice in the public interest appears to be prohibited.
Chapter XLVII of the Establishments Code prescribes norms of conduct applicable to all public officers. Section 6 authorises a Secretary or Head of Department (to) use his discretion to supply to the press or the public information regarding Government and Departmental activities which may be of interest and value to the public, but stipulates that no information even when confined to statements of facts should be given where its publication may embarrass the Government as a whole or any Government Department or officer. Every other public officer is forbidden to allow himself to be interviewed on, or communicate, either directly or indirectly, any information which he may have gained in the course of his official duties to any person, inclusive of the Press. These provisions appear to prohibit the disclosure even of the unvarnished truth in regard to malpractice and corruption in the public sector, and even where the public interest demands exposure.
Besides, many contracts of employment expressly provide that the employee must maintain secrecy in regard to the employer’s affairs, even after the employment has come to an end.
To sum up, then, apart from our childhood inhibitions against sneaking, there appears to be a broad prohibition on the exposure of malpractice and corruption imposed by statutory provisions applicable to several public sector institutions, by subordinate legislation, such as the Establishments Code, applicable to all public officers, and by contractual secrecy clauses in contracts of employment of both public and private sector employees. The existence of such provisions not only fails to encourage whistle-blowers, but exposes them to disciplinary action including dismissal.
How, then, can legal recognition be obtained for the right, and the duty, to whistle-blow? And how may the law protect bona fide whistle-blowers from reprisals?
I must stress that I am not attempting this evening to make an authoritative or definitive statement on those issues, because that requires a much more detailed study as well as a consideration of all points of view. My task today is limited to identifying the possible arguments in favour of one point of view only, namely that whistle-blowing is entitled to legal recognition and protection. A three-pronged approach is feasible:
1. Constitutional provisions
1.1 The Constitution recognises, by implication from Article 12(1) , a fundamental right to freedom from corruption or malpractice. That is confirmed by Articles 3 and 4 of the Constitution. This implied freedom from corruption extends to the private sector as well.
1.2 The freedom of speech and expression recognised by Article 14(1)(a), read with Article 12(1), extends to the exposure of corruption subject to very limited restrictions. That freedom, too, is not limited to the public sector.
1.3 Article 28 of the Constitution expressly imposes on every person in Sri Lanka fundamental duties: to further the national interest, to work conscientiously in his chosen occupation, to preserve and protect public property, and to combat misuse and waste of public property, and to protect nature and conserve its riches. The fulfilment of those duties will often require the exposure of corruption, even in the private sector.
1.4 The Constitution itself provides a variety of extensive remedies judicial, administrative, and parliamentary in respect of corruption and malpractice, consistent with an intention to remedy corruption and malpractice, and to protect those who expose such conduct.
2. Statutes and subordinate legislation
2.1 Secrecy clauses, introduced by Acts of Parliament, must be interpreted (in the absence of express provision to the contrary) as providing a shield of confidentiality only for lawful transactions, and not for corruption and malpractice particularly in the light of the constitutional rights and duties outlined above.
2.2 Secrecy clauses, introduced by regulations (such as the Establishments Code), should be interpreted in the same way, but with the difference that they would be unconstitutional and void if they are inconsistent with constitutional rights and freedoms.
3. Contractual provisions
Secrecy provisions in contracts, public and private which expressly prohibit the exposure of crime and corruption, or which are sought to be so interpreted would be illegal under the ordinary law of contract, as being contrary to public policy.
1.1 Article 12(1): Equality and equal protection. The Constitution is founded on the Rule of Law . The Rule of Law has a number of different meanings. A primary meaning is that everything must be done according to law that people must be governed by laws (i.e. general rules of uniform application), and not by the arbitrary commands and dictates of rulers and their officials. People are entitled to the protection of equal laws, applying equally to rulers and their officials who enjoy no special privileges or exemptions. Another meaning of the Rule of Law is that government must be conducted under a framework of recognised rules and principles which restrict the discretionary powers of public bodies and officials: absolute or unfettered discretions cannot exist where the Rule of Law reigns . Consequently, whenever the law confers powers (or discretions) on public bodies and officials, those powers are treated as having been conferred on them in the public interest; and not for private or political benefit; such powers are held in trust for the people, and must be exercised for their benefit; and they must be exercised lawfully and fairly, and not perversely, arbitrarily, or unreasonably. Where the Rule of Law prevails, there is no room for the arbitrary exercise of power.
It is by means of the fundamental rights guaranteed by the Constitution and in particular, Article 12 that the Rule of Law has been made a reality . Article 12(1) is today the most reliable shield against the unlawful, arbitrary, perverse, or unreasonable exercise of power.
Let me re-state that line of argument. Article 12(1) does not only mean that all those in the same class should be treated in the same way. Article 12(1) combines two concepts, of equality and of the protection of the law. It is an entrenched guarantee founded on the Rule of Law, which has many facets. Interpreted in the context of its foundations, Article 12(1) establishes, expressly or by necessary implication, norms governing the exercise of (and the refusal to exercise) governmental powers namely, the powers vested and delegated by Articles 3 and 4. Those norms apply to every public body and official, however high. Every person has therefore the fundamental right to be treated according to those norms and to enjoy the protection of those norms. Those norms relate both to substance and to procedure. The exercise or non-exercise of power in disregard of substantive norms, if without any basis, would be arbitrary or capricious; and if for a bad reason, would be unreasonable, and perhaps even unlawful. Does a bad reason include a corrupt reason?
Does Article 12(1) afford protection against corruption as well? As stated above, a public official must exercise his powers for the benefit of the public, in the manner required by law. If, instead, he exercises his power in some other way, for instance because he has been bribed that would not only be an abuse or misuse of his powers, but clearly an act of corruption as well. Article 12(1) entitles every person in Sri Lanka to freedom from such acts of corruption. Again, if he misuses his power in order to benefit himself, or his family and friends, or a political party or politician, etc that, too, would undoubtedly be a form of corruption or malpractice. Analysed in that way, it will become manifest that any form of dishonesty, fraud, corruption or malpractice is the direct result of the excess, abuse or misuse of power, or of the culpable failure to exercise power, and would thus fall within the prohibition in Article 12(1). In other words, Article 12(1) necessarily prohibits the exercise of powers vested in public officials for a corrupt purpose and it can therefore be contended that Article 12(1) entitles every person in Sri Lanka to freedom from corruption.
Articles 3 and 4 of the Constitution provide for the exercise of the legislative, executive and judicial powers which are some of the essential components of the Sovereignty of the People of Sri Lanka. Whether those powers are exercisable by the Legislature, the Executive or the Judiciary, no one can be heard to suggest even for a moment that the People delegated any part of their Sovereign powers to any institution or person with a licence to exploit those powers for corrupt purposes. Articles 3 and 4 confirm that all governmental powers must be exercised bona fide, lawfully, and reasonably, free of any form of corruption or malpractice.
Does Article 12(1) apply to the private sector as well? There is a school of thought that fundamental rights, and Article 12 in particular, only afford protection against governmental or executive action, but not as against the acts and omissions of private bodies and individuals. This is based on two misconceptions. The first is the facile assumption that the language of Article 12(1) is the same as the corresponding section of the 14th Amendment to the American Constitution which provides, nor shall any State deny to any person within its jurisdiction the equal protection of the laws. Thus the 14th Amendment is a limited guarantee, only against the acts of any State, while Article 12(1) applies to any act, whether of the State or of any other. The second misconception flows, to some extent, from the first. Article 126(1) of the Constitution provides that the Supreme Court shall have sole and exclusive jurisdiction to determine questions relating to the infringement of fundamental rights by executive or administrative action. On the assumption that the fundamental rights are only a protection against executive action, it is often assumed that the only remedy is that under Article 126 for on that assumption, there is no need for any other remedy.
However, it is clear from Article 12 itself that the fundamental rights grant protection against private action as well. Thus Article 12(3) provides that no person shall, on the ground of race, religion, language, caste or sex, be subject to any disability or restriction, with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion quite clearly, these are almost wholly rights in respect of private, or non-executive, action . If Article 12 is interpreted as being inapplicable to private acts, Article 12(3) will have no meaning. Article 12(3) does not add to Article 12(1): it only states expressly, ex abundante cautela, what is anyway implicit in Article 12(1).
There are thus strong arguments in support of the view that Article 12(1) iincluding the protection it gives against corruption would apply, to some extent at least, to the private sector.
What are the limits of the right? It seems to me that there are inherent limitations to the right to whistle-blow. Whistle-blowing is intended to remedy past malpractice and/or to prevent future malpractice. It must therefore be done in good faith for one of those purposes. If a malpractice has been remedied, and is unlikely to recur, whistle-blowing would only be vindictiveness. If a malpractice occurs in an organization, an employee or member of that organization should first raise the matter internally, so that any past malpractice can be remedied and/or a recurrence prevented. Save in exceptional circumstances, he should not first complain to authorities outside the organization, as that would seem inconsistent with good faith. Subject to that, bona fide whistle-blowing would enjoy the protection guaranteed by Article 12(1), which would therefore preclude disciplinary action.
1.2 Article 14(1)(a): Freedom of speech and expression . This is another possible basis for sanctioning the exposure of malpractice. The freedom of speech may be subjected to certain restrictions. Article 15(2) enables restrictions to be imposed by Acts of Parliament in the interests of racial and religious harmony, parliamentary privilege, contempt of court, or incitement to an offence. Article 15(7) enables further restrictions, by Acts of Parliament as well as by emergency regulations, in the interests of national security, public order, the protection of public health or morality, for securing due recognition of the rights of others, and for meeting the just requirements of the general welfare of a democratic society . None of these provisions authorise the imposition of restrictions in order to prevent exposure of corruption and malpractice : those are of concern to every member of the public, and not merely to those who are directly affected, and every member of the public is entitled to speak about them .
It is therefore arguable that, save in extra-ordinary circumstances, the freedom of speech extends to the exposure of corruption and malpractice; and in the private sector as well.
1.3 Article 28: Fundamental Duties. In order to fulfil the fundamental duties imposed by Article 28, every person must only refrain from corruption and malpractice himself, but must conscientiously expose corruption of which he becomes aware in order to protect public property, or to preserve the environment, or to advance the national interest. At first sight these fundamental duties may appear not to be far-reaching. But can any one who becomes aware of corruption in his work-place and nevertheless refrains from exposing it, claim that he has fulfilled his duty either to further the national interest or to work conscientiously in his chosen occupation?
Although Article 28 imposes fundamental duties on every person in Sri Lanka, Article 29 goes on to say that this does not impose a legal obligation enforceable in any court or tribunal. However, those duties are at least morally binding, and the Constitution cannot be regarded as having intended that any person should be penalised for acting in the fulfilment of a moral duty imposed by the Constitution itself to which, after all, every public officer takes an oath of allegiance.
1.4 Constitutional remedies: Judicial, Administrative & Parliamentary. The Constitution provides judicial remedies by the fundamental rights jurisdiction of the Supreme Court (under Article 126), and the writ jurisdiction of the Court of Appeal (under Article 140). An administrative remedy is provided by Article 156(1), which imposes on the Ombudsman the duty of investigating and reporting upon complaints or allegations of the infringement of fundamental rights and other injustices by public officers and officers of public corporations, local authorities and other like institutions, which would cover all forms of corruption and malpractice in the public sector. While that does not extend to Ministers, parliamentary remedies are provided by Articles 42 and 43 , which make the President and the Cabinet of Ministers, respectively, responsible to Parliament for the due exercise of their powers and duties.
Conclusion: It can therefore be argued that the Constitution recognises the fundamental right to freedom from corruption and malpractice, and the fundamental right and the fundamental duty to expose corruption and malpractice; that the Constitution also provides extensive mechanisms for the investigation of allegations of corruption and malpractice in further recognition of that right and that duty, consistent with an intention to encourage and protect those who invoke those remedies, and penalizing bona fide exposure of corruption or malpractice would be a denial of the protection of the law guaranteed by Article 12(1).
2 & 3. Secrecy clauses in statutes, subordinate legislation, and contracts.
Let me deal first with contractual provisions. Contracts are illegal if they tend to corruption in the administration of the affairs of the nation, because they diminish the respectability, responsibility and purity of public offices, and introduce a system of official patronage, corruption and deceit wholly at war with the public interest . Weeramantry deals with the question when a contract would be void as being contrary to public policy:
It is in the national interest that the public service and its members should be kept free of corruption Consequently any bribe or personal advantage offered to a public officer in regard to the discharge of his public duties is illegal and a contract to grant any such benefit is void.
All bargains tending to stifle criminal prosecution whether by suppressing investigations of crime or by deterring citizens from the public duty of assisting in the detection or punishment of crime are void as against public policy.
Those principles would apply to an agreement relating both to a crime already committed, as well as to a future crime. Weeramantry adds that an agreement not to institute an action for an injury to be committed by another is invalid (as Voet observes) as being a temptation to wrongdoing and as involving the forgiveness of a future offence. A secrecy clause which, expressly or by implication, prohibits the exposure of malpractice, past or future, would be a bargain to stifle prosecution and a temptation to future wrongdoing.
Let me turn to statutory provisions. It is unthinkable that Parliament ever legislates with a desire to conceal or condone corruption, or to diminish the respectability, responsibility and purity of public offices, or to introduce a system of official patronage, corruption and deceit wholly at war with the public interest. On the contrary, it must be presumed that Parliament not second to the common law considered it to be in the national interest to keep the public service free of corruption. If, therefore, an Act of Parliament is capable of two interpretations, and one interpretation would permit the exposure of corruption while the other would compel concealment, the courts should not prefer the latter, as that would be contrary to the public interest, as well as constitutional rights, freedoms and duties. Hence secrecy clauses, introduced by Acts of Parliament, must be interpreted (in the absence of express provision to the contrary) as providing a shield of confidentiality only for lawful transactions, and never for corruption and malpractice.
Finally, the same principles of interpretation should be applied to secrecy clauses, introduced by regulations (such as the Establishments Code). If that is not possible, secrecy clauses will be unconstitutional and void to the extent that they conflict with constitutional rights, freedoms and duties.
4. Responsibilities of Professionals. If professional associations desire that whistle-blowing and whistle-blowers enjoy legal recognition and protection, two tasks await them. They must press for necessary reforms to make the law and subordinate legislation clear and unambiguous in regard to the right to whistle-blow, the duty to whistle-blow, the procedures for whistle-blowing, the protection for whistle-blowers, and the sanctions for victimization of whistle-blowers. They must also adopt Codes of Ethics providing for such matters, bearing in mind that often the law provides only minimum standards while ethical standards are higher.
5. What next? Let me conclude by referring to the further challenge that faces professionals and professional associations, and indeed civil society. Even if whistle-blowing does get all necessary legal recognition and protection, and corruption and malpractice can be exposed without fear, how can we make certain that past malpractice will be penalized and future malpractice prevented?
Justice Mark Fernando
4th July 2003
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