1. The Concept of Whistle blowing
A whistle blower is one who sounds the alert on scandal, danger, malpractice, or corruption within an Organization . Only a few individuals are courageous enough to raise such issues.A major obstruction for the revelation of such corruption by the public has often been recognized as the absence of protection from resultant reprisal.
International experience suggests that such people who disclose and/or raise issues are generally vulnerable for victimization, mostly in their employment. Whilst there is a growing consensus that legal protection of WHISTLE BLOWERS must be encouraged, most often such legal protection revolves around guarantees against resultant victimization and dismissal from employment. In Sri Lanka too, there exists an overwhelming need for legal protection of Whistle blowers.
2. Status quo in Sri Lanka discourages WHISTLE BLOWING?
Unfortunately, the Sri Lankan legal framework does not generally guarantee Freedom of Information and thus there is a general secrecy in the activities of most forms of governance. In such absence, neither the public nor employees have a Right to Information. Sri Lanka has historically not had a strong policy favouring pro-active release of government held information. As a result the public ha not been able to access information on the issues of public importance.
Similarly, the protection afforded to Whistle Blowers in Sri Lanka is below standard; if not non-existent. Certain statutes in fact discourage accountability and seem to grant a sense of security and freedom to those resorting to and/or espousing corruption, maladministration or malpractice.
Sri Lanka’s absence of Whistle Blower protection is reflected by the following examples:
a. The Establishments Code discourages public servants from disclosing information .
b. The Auditor General is not free to divulge information to public ;
c. There is information classified as official secrets, the disclosure of which attracts punitive measures in Law
d. It is an offence punishable with imprisonment to publish in any newspaper, certain stipulated Cabinet documents ;
e. Certain statutes extends to precluding even Courts of Law from perusing documents or availing itself information, that may be required for a proper adjudication of the subject matter ;
f. Many enactments dealing with State Banks and Revenue Collections etc engulf specific provisions curtailing the availability of information to the public, thereby inducing opportunities for lack of scrutiny ;
g. Certain Parliamentary proceedings are protected from being disclosed to the public, who in fact should be privy to any such deliberations being conducted by their elected representatives ;
There is a predominant Culture of Silence , which prevails in most dealings and transactions, may they be state or otherwise.
As noted by eminent jurists, the above negativity in disclosure in the government sector seems to have over-flown to the private sphere as well, where many contracts of employment expressly require that the employee maintains secrecy in regard to the employer’s affairs; at times, even consequent to cessation of such employment. Such secrecy clauses have been identified as temptation for future wrongdoing .
Legal luminaries have also pointed out that although there is no specific legislation protecting Whistle Blowers, the fundamental rights jurisdiction under the Constitution may at times protect such individuals .
Although the Right to Information Bill proposed by the Government has a specific clause on protection of whistleblowers, it is reliably understood that there are moves afoot by any public officials to discourage the incorporation of these provisions . Thus, a single statute on the protection of Whistle Blower may be the need of the hour.
3. Need for protective legislation In Sri Lanka:
In all aspects of governance in Sri Lanka today, may they be State enterprise or beyond, there seems to prevail an undercurrent that discourages, if not totally prevents, individuals from publicizing accountability issues or in instances that they know to be irregular and/or corrupt- to blow the whistle.
It is TI’s evaluated opinion that if the legislature seriously considers it a priority to eliminate wastage and patch up the gaping hole of corruption in the Sri Lankan economy, rapid mobilization is required to introduce protection to all public minded citizens and encourage them to blow the whistle.
In the backdrop of escalated development plans for Sri Lanka, a single statute on Whistle Blowers legislation (as a prelude to further substantive legislation) warrants immediate consideration; lest the Legislators themselves may face the accusation of condoning, if not encouraging non-accountability in day-to-day governance.
Among the main methodologies to achieve public scrutiny of institutions through the above is to ensure legal protection to individuals who are willing to take up matters of public importance, in the interest of the public. These remedies should be independent of other possible remedies.
4. Experience in other countries to understand the need for Protective Legislation
The global experience of whistle blowing is certainly a source of encouragement as well as a means of identifications of issues for consideration.
4.1 Economic Case for legislation
The economic case for Legislation that protects and therein encourages persons to blow the whistle is justification enough.
It has been estimated that in the past 10 years, the U.S. government has collected more than $2 billion as a result of False Claims Act “whistleblower” cases in many industries. Settlements over the next year alone based upon known pending cases could bring in an additional $2 billion to the government .
In one of the biggest whistle-blower cases in American history, Blue Cross/Blue Shield of Illinois has agreed to pay the government $144 million for submitting fraudulent claims to Medicare for elderly and disabled people. In addition, two Blue Cross officials in Marion, Ill., have pleaded guilty to conspiracy, wire fraud and obstruction of a federal audit, and five other Blue Cross managers have been indicted .
4.2 Saving Lives
The justification for Whistle blowing and protective legislation thereof exceeds that of economic purview. The crucially essential nature of whistle blowing can be seen as far as saving lives. Whistle blowers have uncovered many dangerous situations in the US , and often they involve harmful environmental conditions. Whether the cases involve toxins being released into drinking water supplies, or baddies being released from an incinerator, these cases often affect entire communities.
There have been numerous well-known whistleblower cases involving pollutants and the environment .
4.3 Environmental Case
Whistleblower laws are particularly helpful in environmental cases. This is so because many environmental violations and crimes are difficult to detect absent help from knowledgeable insiders.
Recently, a Utah employee of a company retained to destroy aging ammunition sued the company after he was fired when he went public with safety concerns relating to plant operations. An appeals court has concluded that the employee should get his job back and should receive monetary compensation for his wrongful termination .
An EPA official was fired after making known his view that fluoride should not be added to public drinking water supplies, a view not shared by the EPA. He filed a whistleblower lawsuit and won – regaining his job .
5. Suggested Scheme for a New Statute
5.1 Definition of Whistle blower
A broader definition of a Whistleblower is suggested in order to achieve maximum benefit from such legislation. One suggestion:
Whistleblower means an individual, a Group of Individuals or an Organization who raise(s) concern(s) of malpractice within an organizational structure or alert the public or the relevant authorities on scandal, danger, malpractice, corruption, or other illegal activity such as bribery, theft, and fraud, Such individual or Group may either being part of or be associated with it that organizational structure.
A Whistle Blower shall also include any individual who assists in investigations regarding any of the above acts, in the reasonable belief that such acts are unlawful.
Having regard to the market economy and the extended arms of the State and its instrumentalities in the governance today, it is recommended that the proposed legislation should be applicable to both State sector as well as the private sector. The state sector should also include Executive and Administrative bodies, the Judiciary, and other Legislative bodies at all levels of governance.
Disclosure of all information except those that are prohibited in the public interest should be covered as permitted disclosures and it is imperative that such disclosures are strictly in conformity to such expectations and not motivated by extraneous considerations.
The objective of the legislation is to assist, support, shield and protect persons and organizations against discrimination, victimization, harassment and retaliation for their actions to eliminate, expose or avert mismanagement, waste, corruption and or danger to the interests of the public, and to encourage and educate persons and organizations on practices to eliminate, expose and/or avert such mismanagement, corruption and/or maladministration.
5.4 Suggested specific protections
(a) Protection of the whistleblowers against disclosure of source of information, if the whistleblower is not the original source.
(b) Prohibition of all forms of detriment including dismissals, interdictions, disciplinary actions and any such actions in respect of such disclosures, to be considered null and void in law. This should be equally applicable to prospective actions of possible whistleblowers if facts can be established.
(c) Protection for group actions and associations, whether organized or individuals.
(d) Protection against defamation, contempt of court or contempt of parliament.
(e) Prohibition of legal actions against whistleblowers who raise issues on public interest.
(f) Preamble and other indications in the other provisions encouraging public to take up issues on malpractices, corruptions, and scandals.
(g) Penalty/Penal clause against who discriminate or victimize the whistleblowers.
(h) Courts to be vested with jurisdiction to provide just and equitable orders including appropriate interim reliefs on applications made under this Act.
(i) The suggested statute being special provisions legislation, necessary provisions to be made up for this Statute to override other inconsistent legislation and for the provisions of this Act to prevail, notwithstanding anything to the contrary on other existing legislation.