Whistleblower Protection in Malaysia
“…there were certain words which would always catch his ear even if spoken in the merest whisper...” Artist unknown. (1885) The Cornhill Magazine New Series Vol 4 (p.606) . London: Smith, Elder & Co. https://archive.org/details/cornhillnewserie04londuoft/page/606/mode/2up
INTRODUCTION
A whistleblower is a person who reports to an authority about wrongdoing that happened in his organisation.
This writing focuses on whistleblower protection in Malaysia within the ambit of existing law, especially the Whistleblower Protection Act 2010 (“WPA 2010”) (Akta Perlindungan Pemberi Maklumat 2010, Act 711). Protection is the major concern of informants who fear retaliation from their organisation or from society or even law enforcement. Protection of informants actually nests within several other laws including the Witness Protection Act 2009 but such procedures are not always necessary nor helpful; for this writing I am focusing only on the WPA 2010.
In writing this, I am attempting to address these questions:
Can informants rely on the WPA 2010 to protect them once they have disclosed the information to the authorities?
Should people involved in a crime come forward with the expectation that they will not be arrested or charged?
What are the risks of coming volunteering information to the authorities, especially if the informant is involved with the crime?
Source : NST Press. “Rafizi Wasn’t Covered by Whistleblower Protection Act during Arrest”. 18 May 2016.
IN A NUTSHELL THIS IS HOW WHISTLEBLOWER PROTECTION WORKS UNDER THE WHISTLEBLOWER PROTECTION ACT 2010:
You discover there is improper conduct committed by your boss within your organisation or some other organisation or person. Or you yourself participated in such improper conduct.
In good faith, you report such improper conduct to an enforcement agency (e.g. the Police, the Malaysia Anti-Corruption Commission, the Securities Commission Malaysia, etc).
If your report was given orally, the relevant officer shall reduce it into writing.
Upon receipt of your report, the enforcement agency shall confer you with immunity against criminal action, civil action or detrimental action from your organisation or the person you complained against. Congratulations, you are now a de jure and de facto whistleblower!
The law does not prescribe a specific form that you need to fill to apply for such protection, nor does the law prescribe any particular procedure for the receipt, conferment and implementation of protection. Don’t leave it to chance, consult a lawyer and make sure you recorded and organised all your communication with the enforcement agency. If your form is defective or incomplete, it can cause you problems further down the road, e.g. a false sense of security that you are protected when you are not.
The information you disclosed on the improper conduct shall be protected and guaranteed secrecy and confidentiality. Your identity is also kept secret, unless the enforcement agency or the Court requires you to testify in open Court (which may or may not happen — please consult the enforcement agency, the Deputy Public Prosecutor, preferably with the benefit of an independent lawyer of your choice).
Immunity from Criminal Action : So long as you are under such protection as a whistleblower, no enforcement agency may take criminal action against you for disclosing such improper conduct to the first-mentioned enforcement agency. I am presently of the view that immunity from criminal action (it follows that the concept is ‘criminal liability’ referenced under Section 9 of the WPA 2010) should be wide enough to include arrests and prosecution for criminal offences. I am not sure whether it covers quasi-criminal aspects such as freezing orders under the anti-money laundering laws and analogous powers, but to me such aspects should fall within “administrative process” under Section 9. Other enforcement agencies are required to cooperate and give effect to whistleblower protection. There is no time limit for such protection, unless it is revoked by the enforcement agency. In my view, theoretically the Court can also declare or render such protection null and void. The immunity does not protect you if you committed another crime that is unrelated to the matter you disclosed.
Immunity against Civil Action and Detrimental Action : So long as you are under such protection as a whistleblower, no one including your organisation or the person you complained against is allowed to sue you in a civil court or take disciplinary action against you if you are their employee (detrimental action is actually wider than employer-employee relations but I’m keeping it brief here). If they do sue you, you should file an application for it to be struck out. If they undertake disciplinary proceedings, you should file an application for judicial review against such proceedings. The whistleblower was successful in SYED OMAR SYED AGIL v INSTITUT PROFESIONAL BAITULMAL SDN BHD [2017] MLRHU 1873, the first reported case where the Court intervened and set aside disciplinary proceedings undertaken by an organisation against a whistleblower for detrimental action (excerpt of news report below).
The protection conferred upon you as a whistleblower also extends to your close associates in the organisation as well as to your family.
Disqualification : If you have publicised the improper conduct to the media or to some other party that is not an enforcement agency, prior to lodging your report, there is a risk that the enforcement agency may decline to confer the protection upon you. There is no point protecting the secrecy of your identity or the confidentiality of your information, when you have trumpeted it to the whole world.
Revocation : If your have publicised the improper conduct to the media or to some other party that is not an enforcement agency, after lodging the report, there is risk that the protection conferred may be revoked.
The enforcement agency will investigate your report. In the process of investigation, or after the completion of the investigation, the enforcement agency may revoke the protection conferred upon you (and likewise, your associates and relatives). There is no time limit for how long such investigation may take. You should follow up with the enforcement agency on the status of the investigation from time to time. Do it in writing and keep a proper record.
Further to the above, there are at least 6 reasons that may cause the protection to be revoked (please see Section 11 of the WPA 2010).
If the protection is revoked, the enforcement agency shall provide you a notice in writing, so that you can decide what to do next and when.
You have the right to file a judicial review so that the Court reviews the correctness of the decision to revoke protection. The Court may then make the relevant orders if it agrees with you.
Protection under WPA 2010 does not prevent people from following or stalking you. There are other arrangements that you may discuss with the enforcement agency if you require protection, including the full range of option under various laws and the Witness Protection Act 2009. Again, not all of them are appropriate, especially if you are still and intend to continue working at the same organisation that you complained against.
The Star Online, “Whistleblower CEO wins suit”. 21 January 2017.
LEGISLATIVE BACKGROUND
Malaysia became a signatory to the United Nations Convention Against Corruption (“UNCAC”) on 9 December 2003, ratifying the Convention on 24 September 2008. UNCAC requires Malaysia to encourage persons who have participated in the crime to provide information to assist in the investigation, as per Article 37 below:
Clearly, UNCAC recognised the importance of encouraging participants of the crime to come forward to assist in investigations, because sometimes the multilayered complexity of commercial crime meant that the best evidence could be offered by insiders.
The Technical Guide, issued by the UN Office on Drugs and Crime in 2009 in collaboration with UN Interregional Crime and Justice Research Institute, is accessible at https://www.unodc.org/documents/treaties/UNCAC/Publications/TechnicalGuide/09-84395_Ebook.pdf and emphasised that “law enforcement agencies need means to motivate participants [of crime] to reveal their knowledge which otherwise would remain undisclosed”.
Immunity from prosecution is prescribed at paragraph 3 of Article 37 above and explained in the Technical Guide (below):
It followed that the Whistleblower Protection Act 2010 became law through a process of consultation among government departments with a view of giving effect to UNCAC among other things. Please note that:
The Whistleblower Protection Act 2010 covers the protection of informers in relation to all types of improper conduct and criminal activities, not only corruption;
Prior to UNCAC, Malaysia already had several laws that offered limited protection to informers, discussed below; and
The Malaysian authorities always had prosecutorial discretion (the Public Prosecutor) and wide investigative powers and discretions (the Royal Malaysia Police and other enforcement agencies) and always had the discretion not to take action against a particular individual for any reason they considered fit, for example on the basis that the person was an informant, complainant, or as later known by the codified term whistleblower.
The Malaysian Government, as part of its policy to improve the delivery of government services and governance through National Key Results Areas (“NKRA”) identified under the Government Transformation Programme, in 2010 tabled the Whistleblower Protection Bill 2010 before the Dewan Rakyat. During the Second Reading heard on 20.4.2010, the then Deputy Minister in the Prime Minister’s Department, YB Datuk Liew Vui Keong (“YB VK Liew”) explained that the Bill proposed to establish a legal framework to protect persons who provide or expose information about crime, especially involving corruption. Such protections were considered necessary to encourage potential informers to come forward with information on crime. Such legal protection was intended to confer immunity against detrimental action from employers, and civil and criminal action from the authorities. This underpinned the Second NKRA to combat corruption in the public and private sectors[a].
Apart from the policy agenda of the Government, the enactment of the WPA 2010[b] was also in compliance with Malaysia’s international obligations as a signatory to UNCAC. UNCAC entered into force for Malaysia on 24 October 2008[c].
YB VK Liew stated,
“Tuan Yang di-Pertua, Malaysia adalah salah satu pihak kepada dengan izin, United Nations Convention Against Corruption (UNCAC). Malaysia telah menandatangani UNCAC pada 20 September 2008. Artikel yang relevan mengenai perlindungan kepada informer terdapat dalam Artikel 33 dan Artikel 37.
(…)
“Tuan Yang di-Pertua, hasrat kerajaan untuk mengadakan undang-undang berhubung dengan perlindungan kepada pemberi maklumat (whistleblower) adalah selaras dengan Artikel 33 dan Artikel 37 UNCAC.”
As such, whether the enactment of the WPA 2010 achieves its purposes or does not, is a question that suffers from lack of comparative material to make analysis. The very fact that the number of reported cases of enforcement of the WPA 2010 is scant underscores concern in its effectiveness and its ability to fulfil its noble aims. At the same time, reports in the media about action taken against so-called “whistleblowers”[d] raises important questions for consideration on the proper understanding and administration of whistleblower protection in Malaysia.
How is the Response of the Public and the Enforcement Agencies to the implementation of the WPA 2010?
Public Response
There remains lack of awareness among the public of their rights as complainants, informants and whistleblowers. The information on the procedures and their rights is not user friendly. A layperson, untrained in law, and possibly desperately in fear of retaliation from their organisation or dangerous criminals, does not have the time nor mental focus to sift through the internet for such information. All police stations and all complaints portals of all agencies should clearly display the key procedures and relevant rights (and risks too). All front-line personnel should be trained to explain the rights and responsibilities of informants — so that they will not make reckless public statements that may disqualify their whistleblower protection. Finally, the conferment of whistleblower protection should be automatic and immediate. Complainants should not have to wait for it. This is consonant with the law. The High Court decided in MOHD ROSLI ANI v LEMBAGA PENCEGAHAN JENAYAH & ORS [2021] MLRHU 567 :
“[103] Having said that, if there was credible evidence (which there was not), that the Applicant was a whistleblower, he would have been entitled to the immunity prescribed by s 7(1) (b) and by pure and simple operation of law, would be entitled to a Writ of Habeas Corpus being issued for his release from preventive detention.”
(emphasis added)
The public would benefit from reminders that when they choose to go to the media or public first and not the enforcement agency, then they have made a decision and taken a risk to take their own route and not what has been prescribed by the WPA 2010. They may have done this our of ignorance of the law, bad advice, or because they distrust the government machinery. Perhaps they truly believed, in good faith, that they were doing the right thing in the right way.
Is she a whistleblower?
Source : Free Malaysia Today, 3 February 2022. This image is uploaded for illustrative purposes and does not provide any suggestion of the actual facts and circumstances of the case depicted, nor any commentary on the legal and judicial processes involved. Myself I do not know any more about the case than what was reported. If Ms Lalitha was found to be protected as a whistleblower, she should be protected from any civil suit for defamation. Due to the restrictedness of the WPA 2010, it could be that the clearest recourse open remains the defences for journalism provided under the established defamation law, and not the WPA 2010 because she went public with her report.
With respect, and again with only a cursory knowledge of the facts of the case, it seems unfortunate that the applicants/appellants were deprived of protection in the case ROKIAH MHD NOOR v MENTERI, KEMENTERIAN DALAM NEGERI, KEPENGGUNAAN & KOPERASI MALAYSIA & ORS AND ANOTHER APPEAL [2017] 2 MLRA 672. The Court of Appeal decided :
“[33] Therefore, to seek protection under the WPA, the person disclosing the improper conduct must make the disclosure only to any of these enforcement agencies and to no others. In the present case, clearly Rokiah and Azryain did not qualify as whistleblowers as other than disclosing the alleged improper conduct to members of CCM and the Anti Corruption Commission, the disclosure was also made to the following third parties none of whom is an “enforcement agency” within the meaning of s 2 of the WPA …”
(emphasis added)
Although Rokiah did not go to the media (as per the facts in the Judgment), she informed the Prime Minister, Deputy Prime Minister and other senior officials. This seems to go beyond the “good faith” requirement discussed in NOORAZLINA SHAMSUDIN (High Court and affirmed by Court of Appeal) by actually creating a ex post factum disqualification, which is not a revocation provided by statute. Disqualification should be ab initio and not ex post factum. Intriguing that Dato’ Zaharah Fenner was later charged for MACC offence despite at 683 of the same report, the Court of Appeal found:
“…in the case of Azryain’s appeal, the Disciplinary Appeals Committee noted that the Malaysian Anti-Corruption Commission had investigated the allegations contained in the 25 October 2011 letter and did not find any impropriety in the allegations.”
It could be that the item complained by Rokiah was different from the matter actually charged. Being charged does not confirm Dato’ Zaharah Fenner’s guilt, but actual guilt after a full trial should not determine the status of Rokiah as a bona fide whistle blower. The Technical Guide to the UNCAC has something to say about this — that the reporting person need not have perfect knowledge of the improper conduct — even if the accused person was later acquitted, the reporting person is still entitled for protection — confidentiality and retaliatory civil action (unless such protection were revoked).
Anyway, I agree with the Court of Appeal that the Prime Minister, Deputy Prime Minister and other officials were not “enforcement agencies” as statutorily defined.
The High Court in DR MILTON LUM SIEW WAH v MAJLIS PERUBATAN MALAYSIA [2019] MLRHU 757 also declined to recognise the applicant, Dr Milton Lum as a whistleblower, and declined to recognise the Malaysian Medical Association as an enforcement agency. His Lordship Nordin Hassan J (now JCA) found :
“[6] In the present application, the core issue here is whether the respondent is an enforcement agency within the definition of enforcement agency under s 2 of the WPA 2010.
(…)
[18] Having perused the Act and its Regulations, I find, the respondent does not have any investigation and enforcement functions or powers to be categorised as an enforcement agency under the WPA 2010.”
In my view the reasoning by Nordin Hassan J is sound. Unlike Rokiah’s case, the High Court in Dr Milton’s case declined to recognise him as a whistleblower ab initio, because by definition a whistleblower is someone who discloses improper conduct to an enforcement agency. Therefore if the recipient of disclosure is not an enforcement agency, by definition, the informant is not a whistleblower. It is respectfully submitted that once conferred, the status of a whistleblower can only be removed by revocation because that is the procedure prescribed by law.
Apparently, it seemed that Rafizi, Rokiah Mohd Noor, Dr Milton Lum and Lalitha Kunaratnam were all denied protection because they went to the media or some other entity that was not an enforcement agency. Again, it could be that they all acted in good faith with belief that they were doing the right thing through the right channels. But the law is the law. It worked for Dr Syed Omar Syed Agil — arguably he could have lost his case if he had gone public with his complaint to the authorities — instead he only complained to proper enforcement authorities and this was recognised by the High Court.
The law does not distinguish journalists, politicians, Deputy CEOs, and medical practitioners from other members of the public. In Dr Milton Lum’s case, Dato’ Nordin Hassan J rightly referred to the Hansard where YB VK Liew, in reply to a question, explained that enforcement agency has certain criteria, and by illustration he explained that the Bar Council was not an enforcement agency.
Analysing the cases above, I cannot escape feeling that the WPA 2010 and its implementation by the Courts seem to focus on suppressing information and not protecting the informant. Protection is like a game, and to win the game you have to play by the rules. The rules set out under the WPA 2010 have the net effect of suppressing information because it ensures that the information is controlled by institutions that are by definition enforcement agencies. Ultimately, it is undeniable that all procedures of the enforcement agencies lead up to the Attorney General as surely as all roads lead to Rome.
The legal fact that protection is conditional upon control of the information is a fundamental flaw in the structure of the whistleblower protection regime. Information is power, and if certain information about personalities in the establishment goes public, the establishment may fear losing control of any operational advantage to fight crime effectively and uphold justice (to assume the best) or any political mileage (to assume the worst).
This is not an entirely unreasonable concern because the government would find it futile to protect the confidentiality of a whistleblower who has already made himself a target by publicising his story. That is a metaphor for sounding the trumpet, not blowing a whistle!
On the subject of approaching the media, the UK Department of Business Innovation & Skills has this to say in its publication, “Whistleblowing ; Guidance for Employers and Code of Practice” of March 2015:
“Alternatively, a worker might choose to approach the media with their concerns. If a worker goes to the media, they can expect in most cases to lose their whistleblowing law rights. It is only in exceptional circumstances that a worker can go to the media without losing their rights. They must reasonably believe that the information they disclose and any allegation contained in it are substantially true. They cannot be acting for personal gain. Unless the wrongdoing is exceptionally serious, if they have not already gone to their employer or a prescribed person, they must reasonably believe that their employer will subject them to “detriment” or conceal or destroy evidence if they do so. And even then, their choice to make the disclosure must be reasonable.”
Source link : https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/415175/bis-15-200-whistleblowing-guidance-for-employers-and-code-of-practice.pdf
Enforcement Agencies
Very few enforcement agencies publish statistics of complaints received, let alone the numbers on whistleblowers. Even if they did, few actually upload their annual reports into the internet. Those that stand out are very few, of which the award goes to the Malaysian Anti-Corruption Commission and the Securities Commission. For those who did not publish their statistics in accessible annual reports, I would respectfully suggest doing so because there is no point publishing glossy annual reports in hardcover or in colourful PDF if they are difficult to access after layers and layers of portals and pages. Please improve accessibility and user-friendliness because the public wants to support you. Do not be afraid of criticism, take it positively.
Source : Annual Report, Malaysian Anti-Corruption Commission (2019), page 31.
Source: Annual Report, Malaysian Anti-Corruption Commission (2019), page 37.
I have not yet sighted any of MACC’s annual reports after 2019, so I will confine this up to 2019. MACC reported receiving 7,724 information reports — that number was trimmed down following measures to reduce duplicity, incomplete information and other factors. Even with the filter, the number is still large. Even then, out of those 7,724, only 47 were given whistleblower protection. While the 47 looks good relative to the 50 who requested, the question is, did the rest of those 7,624 even know that they could request. Is requesting part of the WPA 2010? I cannot find anything under Section 6 or 7 that mentions ‘upon request’. Request only plays an effective role when the informant, already recognised as a whistleblower, makes a request for remedy under Section 15 of the WPA 2010. That means that 7,624 potential whistleblowers did not receive protection from MACC because they did not request? Not all of them were concerned detrimental action. Is that what it can mean? The disparity is too large to ignore. And how many more persons would have come forward with valuable information for the MACC, had they known they were assured protection under WPA 2010? I am sure MACC has a very good and responsible reason for such disparity — I could not find such explanation between those pages 31 - 37 of their Annual Report 2019 though. Sometimes the explanation is in between the words or implied. I believe MACC is committed to protect whistleblowers, but we need to accept the reality that the understanding by the public is still poor. Don’t look at the number “47 out of 50”, look at the number “47 out of 7,724” — it means we have a problem. I cannot imagine informants not requesting protection (anonymity, immunity) if they knew they are expected to request. If my assumption is correct (and I hope I am wrong, because MACC is a great institution to combat corruption), then the MACC is not implementing the WPA 2010 in the spirit of automatic conferment of protection. To me, the decision on whom to confer has already been decided by Parliament, it is clearly in Sections 6 and 7. No enforcement agency should usurp what Parliament has prescribed, even if it is with good intentions or due to operational expedience.
Apart from the conferment of protection process, 47 out of 7,724 shows that the public education unit / department of MACC is facing some challenges, what more that the WPA 2010 has been in force almost as long as MACC has existed (post-ACA). What is the reason that there is only 47 in 2019 after 9 years of the WPA 2010? Perhaps the unit/department can benefit from increased funding and headcount — I believe spreading awareness is equally important as enforcement in the war against corruption. While I have no benchmark for this, perhaps a number in the region of 3,000 out of 7,724 should be a good number that shows that the WPA 2010 is being implemented.
From another angle, the actual process of conferment of protection needs to be studied. There have no doubt been many meetings of various law reform committees under the Legal Affairs Department (Bahagian Hal Ehwal Undang-Undang) looking into this matter. I had represented the Securities Commission Malaysia to several such committee meetings when the whistleblower implementation policy, centred around Law Minister YB Nazri Aziz’s Garispanduan Perlaksanaan Perlindungan Pemberi Maklumat. I am unable to disclose here what was actually discussed, and it would be out of date anyway. But between then and today, I do not see the vibrance and development of whistleblowing in the public sphere, as I would have liked to see. What we do see is an explosion of whistleblower SOP and the mushrooming of Integrity Units in big companies and statutory bodies. Good to see all that happening as it can help with the delivery of the services of the enforcement agencies — but following the argument in Rokiah’s and Dr Lum’s cases, integrity units and all those functionaries in the big companies are not enforcement agencies under the WPA 2010. To me these new set-ups are a good thing but I don’t think the Courts will recognise them if we go by the aforesaid decisions. To protect the interest of whistleblowers, such set-ups should discourage informants from telling them anything, and instead divert them to the nearest police station, because, as per Rokiah and Dr Lum, such set-up can disqualify the informants from protection. Unless of course, the entire staff of such set-ups comprise officers from an enforcement agency who are posted on secondment.
DEFINITION OF WHISTLEBLOWER
The WPA 2010 established a framework that confers protection upon any person who in informs the authorities of a crime or wrongdoing that has happened or is about to happen, based on their reasonable belief[e]. The main condition is the information provided is based on a reasonable belief of the informer. If a person informs the authorities that someone has committed a crime or some other improper conduct, he is by definition a whistleblower. The WPA 2010 then confers protection upon the whistleblower by protecting the confidentiality of their identity and the content of the information disclosed, by granting immunity against civil and criminal action by authorities, and by protecting them against certain entities such as employers who may retaliate against the whistleblower for divulging the information — the latter is known as detrimental action.
The following are terms defined under the WPA 2010:
Definition of “whistleblower”:
“any person who makes a disclosure of improper conduct to the enforcement agency under Section 6;”
Definition of “improper conduct”:
“any conduct which if proved, constitutes a disciplinary offence or a criminal offence;”
Definition of “enforcement agency”:
“(a) any ministry, department, agency or other body set up by the Federal Government, State Government or local government including a unit, section, division, department or agency of such ministry, department, agency or body, conferred with investigation and enforcement functions by any written law or having investigation and enforcement powers;
(b) a body established by a Federal law or State law which is conferred with investigation and enforcement functions by that Federal law or State law or any other written law; or
(c) a unit, section, division, department or agency of a body established by a Federal law or State law having investigation and enforcement functions”.
Origin of the term “Whistleblower” as used in the Whistleblower Protection Act 2010
The term “whistleblower” (and its hyphenated form whistle-blower) in its contemporary meaning appeared to enter into use in the English language around the year 1970, where it referred to “[a]n employee who reports employer wrongdoing to a governmental or law enforcement agency”[f]. In the quoted Hansard, YB VK Liew referenced the term “pemberi maklumat” interchangeably with “whistleblower”, in the context of a worker who exposes the improper conduct at his workplace.
Cultural Anatomy of “Whistleblower” — A Colliquialism Loaded with Alien Sentiments?
The Technical Guide to the UNCAC remarked about the unsuitability of the English term “whistle-blower” and appeared to discourage State Parties from using such term. Perhaps this could explain why the BM term “pemberi maklumat” is used to refer to both whistle blowers and informants under various laws — whistle-blower as a compound or hyphenated word is a uniquely American English colloquialism loaded with meaning that my be unsuited for our culture and circumstances.
Above, the Technical Guide (p. 103) recommended the term “reporting persons” which conveys the intended meaning; in BM it could be interpreted as “orang yang melapor” — since “pengadu” already is established as the translation of “complainant”; and thus allowing “pemberi maklumat” to remain exclusively the corollary of “informant” with no confusion.
Anyway, the word “whistleblower” is already codified in Malaysia so it is a done deal. But it is still worth exploring what the subtext of the legislative language is, whether such subtext was before the draftsmen or not. I do not think the concept of a person who is aware of something wrong and then reports it, is alien to any part of Malaysian culture, with some adjustments to account for worldview (please see
https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/download/362/231/1175).
Hopefully, there will never come a day when a person’s liberty, confidentiality or anonymity is jeopardised only because the BM version of two dissimilar forms, directives from two different laws were enforced.
For completion, I have surveyed the online discussions on whether the term “whistleblower” has negative connotations. A commenter identifying himself as an American-English speaker discussed the value context of the term whistleblower:
“The expression to blow the whistle means to expose corruption, that is, conspiracy or extortion by means of state power or state-backed corporate power.
So what you feel about whistleblowers has an awful lot to do with how you feel about state power.
ELL.SE users draw very heavily from the tech trades, and, at least in the US, that is a population that tends toward having negative feelings about state power, or who are at least very touchy about how state power is used. I count myself in this cohort. On top of that, the Snowden revelations have primed a lot of people already skeptical about abuses of power to feel very negatively indeed about it. Among this population whistle blowing is seen as something heroic.
It can be hard for those of us in this demographic to realize there is also a sizable demographic in the US which is very authoritarian in both personality and culture. They actually think authority and systems of authority are good things, and that people who challenge authority are immoral. For them whistleblower is a negative term and blowing the whistle means something very like betrayal. At best, if a whistleblower is vindicated subsequently, people with such sympathies to authority tend to see the whistleblower as, at best, a "necessary evil", and someone of low character who happened to be right -- like a criminal who turned on other criminals. These are the people saying, "Even if Snowden was right, he had no right to do what he did.”
(the link :https://ell.stackexchange.com/questions/24606/does-whistle-blowing-have-a-negative-meaning )
Into the last two centuries, the term had a wider connotation, from the literal usage for someone who blows a whistle:
They see by every breeze and from this quarter that Harmanson is plunging and foaming at a rate that must prove his utter destruction before November, and they, the pipe-layers and whistle-blowers of the city are sonnding (sic) the alarm in earnest.
— Southern Sentinel (Plaquemine, LA), 22 Aug. 1849
A kettle-drum, a fifer and a whistle-blower, formed the orchestra for bruin to dance by—truly, fit music for a bear.
— San Francisco Bulletin, 1 Dec. 1860
At the end of the 19th century, “whistle-blower” (hyphenated), was also accepted in a narrower sense, to mean a referee or adjudicator in sporting events, “who blew a whistle in the administration of rules and judgment.”
In the early 20th century following the First World War, usage of the term whistle-blowing (still hyphenated) was taken as a metaphor “to call public or official attention to something (such as a wrongdoing) kept secret.”[g]
In contemporary usage, the term whistle-blower took on its unhyphenated form “whistleblower” although the hyphenated form also persisted, albeit with the same metaphorical meaning.
The Scribner-Bantam English Dictionary has described the phrase “to blow the whistle on” as a slang word meaning “to inform on”[h].
Collins English Dictionary defines “whistle-blowing” as “…the act of telling the authorities or the public that the organization you are working for is doing something immoral or illegal.”[i]
It appears that the usage of “whistleblowing” or hyphenated “whistle-blowing” took on a narrow meaning within a workplace context where a worker with information on wrongdoing by their employer or organisation, notifies the authorities.
This narrower meaning was reflected in the introductory speech in the Hansard, where YB VK Liew stated,
“Hasil daripada kajian yang dijalankan, kerajaan mendapati bahawa pemberi maklumat atau dengan izin, whistleblower ditafsirkan sebagai seorang pekerja yang memberikan maklumat mengenai kelakuan tidak wajar yang berlaku di tempat kerjanya.”
[Based on the study conducted, the Government found that whistleblower is interpreted to mean a worker who gives information on the improper conduct that happens at his workplace[j]].
In its statutory form under the WPA 2010, the aforesaid narrow meaning of whistleblower in its gerund (whistleblowing) and hyphenated forms (whistle-blower) has been widened to encompass “any person”.
For the first time in Malaysian statutory law, the WPA 2010 codified the word “whistleblower” (one unhyphenated compound word), providing a wide meaning as referenced by Section 2:
‘ “whistleblower” means any person who makes a disclosure of improper conduct to the enforcement agency under Section 6;’
In the Bahasa Melayu version of the Act, the same interpretation under Section 2 provides:
‘ “pemberi maklumat” ertinya mana-mana orang yang membuat pendedahan kelakuan tidak wajar kepada agensi penguatkuasaan di bawah seksyen 6;”
It is respectfully submitted that the Bahasa Melayu version suggests an even wider meaning than the English, because the term “pemberi maklumat” is used to refer to different categories of persons in other statutes, for example complainants, informers and informers.
On its own this is unproblematic, but when the term “pemberi maklumat” is also translated as “informer” or “informer”, some confusion may arise. In the law enforcement framework of the Malaysian legal system, “whistleblower” and “informer” are two different channels of providing information entailing different legal treatments and clothed with different protections under different laws.
The term “informer” is not found in the WPA 2010. However, it is found in other laws that were enacted prior to WPA 2010. For example, Section 40 of the Dangerous Drugs Act 1952, where the term “informer”, or “pemberi maklumat” in the Bahasa Melayu translation, is used. The protections conferred under the said provision relates to disclosure of information that enable the informer to be identified. It does not confer the kind of immunity that is provided under the WPA 2010.
Protection of Informers prior to and upon the coming into force of the Whistleblower Protection Act 2010 under Similar Provisions of Law that Describe the Act of Providing Information
Prior to the coming into force of the WPA 2010, there was no legislation granting actual immunity to whistleblowers against arrest, criminal charges or loss of job security or business opportunities. There was no centralised law that marshalled the definitions and protection mechanism for whistleblowers in the way that the WPA 2010 offers. Section 9 of the WPA 2010 was the first piece of law that extinguished the exposure of informers to legal action, by specifically referring to liability.
Protection of informers was enacted by specific legislation covering specific subject matter only. Below are a selection of laws and the respective provisions for the protection of persons who provided information to the relevant agency, referred by the term “informer” and similar analogues.
“Pemberi maklumat” is used for both informant and whistleblower in the BM version of several existing legislations. It could be because the English term “whistleblower” itself could be a word that arose from a colloquialism that is difficult to translate precisely. In any case, since whistleblower has entered Malaysian statute law, we should take it as it is and ensure the BM version uses 2 different terms to avoid any operational and even interpretational problems in the future.
A review of the above laws shows that the protections provided to informers or persons who provided information or disclosure of wrongdoing were confined to protecting their anonymity and confidentiality of the information provided. To a certain extent, the aforesaid persons were also given limited protection from civil liability for providing the information. Of the four examples above, only the fourth item (the Financial Services Act 2013) came into force after the WPA 2010, and it did not use the term “pemberi maklumat”.
How is the Whistleblower Protection Conferred upon Informers?
In contrast with the Witness Protection Act 2009, the WPA 2010 provides a method of conferring the whistleblower status and its protections in a straightforward manner.
YB VK Liew stated in the Hansard that the existing framework for protection of informants is inadequate. It was also observed that witnesses who sought protection under the existing Witness Protection Act 2009 had to undergo certain processes such as making an application to the Director General of Witness Protection, to enrol in the Witness Protection Program and other conditions that must be complied under the said Act.
The process for an informant to become a whistleblower is set out in only 3 provisions of law (please refer to the simplified process flow at Fig. 1 below): Section 6 on the disclosure of improper conduct and Section 7 which shall confer whistleblower protection upon the informant when the disclosure is received by the enforcement agency. Section 3 makes it clear that it falls on the shoulders of the enforcement agency to implement the above provisions. It is respectfully submitted that by operation of law, the whistleblower protection takes effect immediately, until revoked under Section 11 of the WPA 2010[l].
Implementers of the whistleblower protection may be concerned that there is a second school of thought holding the view that the conferment of the whistleblower protection does not take effect by operation of law, instead the conferment is subject to the procedures and discretions operationalised by the bureaucratic machinery of the enforcement agency, including a determination of good faith (according to whose standard, who knows). Therefore, such school of thought holds that the disclosure of improper conduct does not automatically confer the protection provided under Section 7 of the WPA 2010.
His Lordship Dato’ Zulkifli Bakar, in dismissing an application I filed on behalf of my client in NOORAZLINA SHAMSUDIN v PENDAKWA RAYA [2016] 1 MLRH 506 at paragraph [28] opined:
“[28] Berdasarkan kepada faktor-faktor yang dinyatakan di atas, saya mendapati bahawa pemohon tidak boleh dikategorikan sebagai "Pemberi Maklumat" di bawah s 7 Akta Perlindungan Pemberi Maklumat 2010 dan dengan demikian pemohon tidak memperolehi kekebalan daripada pendakwaan jenayah di dalam kes ini. Persoalan tentang s 11 Akta Perlindungan Pemberi Maklumat 2010 tentang pembatalan status seseorang "Pemberi Maklumat" tidak timbul sama sekali di dalam kes ini kerana pemohon tidak pernah diiktiraf sebagai "Pemberi Maklumat: oleh pihak SPRM dan sebaliknya pemohon dengan jelasnya telah diarahkan untuk memberikan kerjasamanya sebagai "suspek" dan selanjutnya sebagai "tertuduh" apabila pemohon dituduh dengan 10 pertuduhan di dalam kes ini di Mahkamah Sesyen.”
(emphasis added)
Strengths of the Whistleblower Protection Act 2010
Section 9 of the WPA 2010 confers immunity upon a whistleblower, granting protection from civil or criminal liability, without a time limit prescribed nor a need to renew. Contrasted with the term of protection orders granted under the Domestic Violence Act 1994, which expire within 12 months and renewable only once for another 12 months.
Although the phraseology of the three words, “action, claim or demand” typically is understood to refer to proceedings under civil and not criminal law, it is respectfully submitted that the drafting of Section 9 and the underlying purpose suggests that the words “action, claim or demand” applies to criminal action as well as civil action. Due to the word “liable” and “action”, Section 9 itself does not explain whether and how it prevents a whistleblower from being arrested or charged.
While “liable” and “action” are not defined statutorily, it is submitted that the Courts may benefit from guidance of the following definitions:
“liable” (15th century) 1. Responsible or answerable in law; legally obligated.
“liability” (18th century). 1. The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.”
“penal action” (16th century) 1. A criminal prosecution. 2. A civil proceeding in which either the state or a common informer sues to recover a penalty from a defendant who has violated a statute. Although civil in nature, a penal action resembles a criminal proceeding because the result of a successful action is a monetary penalty intended, like a fine, to punish the defendant.
“criminal action” (16th century) An action instituted by the government to punish offenses against the public.
“immunity” (14th century) 1. Any exemption from a duty, liability or service of process; esp. such an exemption granted to a public official or governmental unit.
It is unclear whether such protection extends to other processes that are related to the criminal procedure but does not entail the determination of guilt by a judicial process – for example, preventive detention, processes to compel appearance such as a subpoena in an inquest on the death of a person, contempt proceedings, and other quasi-criminal proceedings. Arguably, freezing orders under Section 44 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [Act 613] do not entail the establishment of liability and could be unaffected by the protection provided by Section 9 of the WPA 2010.
Apart from protections, Section 15 of the WPA 2010 also creates a civil cause of action that an informant may rely on to sue parties who have committed detrimental action. Although the enforcement agency has the power to file a civil suit to recover damages and the relevant terms, the informant may also institute a civil suit without relying on the enforcement agency to do so[m].
The enactment and enforcement of the WPA 2010 is a step in the right direction to realising the Government’s plan under the Government Transformation Plan. Being the first and only stand-alone legislation providing immunity to informers, the WPA 2010 augurs well for sustainable governance.
Weakness of the Whistleblower Protection Act 2010
The most recent case reported on WPA 2010. I was informed by a source close to the case that the Accused challenged the case on 2 grounds : (1) The form purportedly conferring the whistleblower status was defective; and (2) whistleblower status does not arise (i.e. as an ingredient of the charge) because the conduct of the Accused is unrelated to the improper conduct purportedly disclosed by the “whistleblower”. As agreed with the source, I would refrain from further comment on this case until the grounds of judgment is published (not yet at the date of this writing).
Source : FMT Online 20 May 2022 https://www.freemalaysiatoday.com/category/nation/2022/05/20/first-person-charged-under-whistleblower-act-acquitted/
Lack of clarity on the mechanism for conferment of protection.
The first view is that the status of whistleblower is automatically conferred by operation of law[n]. A literal construction of Section 6 read with Section 7 of the WPA 2010 explains that any person becomes a whistleblower by definition and by operation of law, the moment they make a disclosure of improper conduct to an enforcement agency. Therefore, the immunity is conferred by law and not by the agency and it is effective immediately upon disclosure and not acknowledgment of receipt. This view facilitates more persons to come forward with information of crime because they would be assured that they are conferred immunity immediately without having to undergo bureaucratic delays. In any case, the enforcement agency is given the power to revoke such status under Section 11 of the WPA 2010. Such decision may be challenged by the whistleblower under judicial review.
The second view holds that even when the informer has disclosed information of improper conduct to an enforcement agency, such agency has the discretion to apply internal guidelines and procedures to determine whether such protection should be conferred[o]. Therefore, no protection is given unless the enforcement agency notifies the informer that they are recognised as a whistleblower. Even if this is the correct view, the law does not impose a timeline for which the enforcement agency must respond. This view places informers at a disadvantage because they have taken risks to notify the authorities.
Excluded categories of recipients of disclosure, and “first past the post”.
The Courts have taken a strict interpretation of “enforcement agency” as provided under Sections 6 and 7 and under the interpretation of Section 2 of the WPA 2010[p].
The Court of Appeal had gone a step further by ruling that even if disclosure was properly made to the correct enforcement agencies, the protection can still be disqualified if the whistleblower also made the disclosure to entities that are not recognised as enforcement agencies[q]. This is elaborated by YB VK Liew[r], who explained that the disqualification is enforced to protect the interest of the party accused of improper conduct, and to protect the integrity of the information itself so that investigations are not prejudiced, with reference to Section 8 of the WPA 2010.
It is respectfully suggested that such stand disadvantages informers because informers cannot be expected to distinguish an enforcement agency recognised by the courts from an entity that has the trappings of an enforcement agency but falls short. Furthermore, it results in an anomaly whereby the immunity granted by law upon conferment of the status of a whistleblower by an enforcement agency is suddenly subject to the actions of the informer who may have also notified other entities and regulators that fall short of the criteria to be considered enforcement agencies. It is respectfully recommended that whenever an enforcement agency receives disclosure of improper conduct under Section 7 of the WPA 2010, it immediately informs the whistleblower that the immunity may be extinguished by revocation under Section 11 of the WPA 2010 or the act of the whistleblower notifying other entities that are not enforcement agencies. This is to safeguard the rights of the whistleblower, who has taken risks to volunteer information of a crime, and is therefore an indispensable player in sustainable governance.
Apart from the Courts, some enforcement agencies have implemented their own guidelines and procedures for receiving and conferring the status of whistleblower, which appear to expand on the words of Section 7(1) of the WPA 2010[s]. These guidelines differ from agency to agency and are not uniform, nor are they easily accessible to the public. Some exceptions include the Malaysian Anti-Corruption Commission. One suggested anomaly is the practice of “first past the post”, meaning that if the enforcement agency already had prior information concerning the improper conduct and already begun investigations, then the informer is not recognised as a whistleblower[t]. It is respectfully submitted that while enforcement agencies should be permitted to administer their respective standard operating procedure in relation to the receipt of disclosure under Section 7 of the WPA 2010, they should not transgress what the WPA 2010 itself permits. Nothing in the WPA 2010 suggests that a whistleblower can only be the first person who makes the disclosure of improper conduct. Otherwise it would conflate the issue with the concept of a first information report, which is in a different realm under the Criminal Procedure Code. Furthermore, it is respectfully suggested that genuine bona fide informers may be disadvantaged against false accusers who are given priority past the post because such false accusers rushed to make the disclosure before the genuine informer.
The observations above in this paragraph, concerning the view of the court, the said Deputy Minister and practice of an enforcement agency, would be further informed by considering the various conditions and procedures provided in the statute of the Witness Protection Act 2009[u].
Lack of clarity on the true import and limitations of the whistleblower protection. Section 3 of the WPA 2010 empowers the enforcement agency to implement such immunity, but it is silent on the actual mechanism for effecting the same.
Section 3 sets out the general powers of the enforcement agency in the administration of the whistleblower protection. Subsections 3(2)(b) and (f), and 3(3) provide that the enforcement agency has the power to enforce and implement the whistleblower protection and the provisions of the WPA 2010, drawing on the power to do all things expedient and reasonably necessary for, or incidental thereto.
A whistleblower may be in fear that they may face a number of risks and dangers, which are institutional and non-institutional in nature. However, the WPA 2010 is unclear on the procedures for enforcing the powers given to the enforcement agency in administering the whistleblower protection.
Institutional dangers include:
Arrest by police, Malaysian Anti-Corruption Commission, Internal Revenue Board or any other enforcement agency. It is unclear whether an enforcement agency can stop another agency from arresting the whistleblower under its protection. Subsection 5(4) of the WPA 2010 provides that the other agencies shall render all such necessary assistance as required by the enforcement agency for the purpose of implementing the WPA 2010. Therefore, it can be surmised that no inter-agency contest on the status of a whistleblower would arise because the other agencies that wish to arrest the whistleblower is obliged (the word used is “shall”) to respect the whistleblower status conferred by the aforesaid enforcement agency, and thus to forbear from arresting them. It is respectfully submitted that the language of the said subsection is wide enough to cover other actions by other agencies that are criminal in nature. However, the author is still studying whether such other actions also include the exercise of other powers such as freezing orders against bank accounts, processes to compel attendance for interrogation, travel restrictions, restriction or cancellation of licences and preventive detention.
Criminal charges filed on behalf of the Public Prosecutor in a court of law for breach of secrecy provisions under the Financial Services Act, the Official Secrets Act or other secrecy-related laws. The Public Prosecutor is not an enforcement agency. However, Section 9 read with subsection 7(1)(b) of the WPA 2010 confers protection against criminal action. The subject is still under study whether the Public Prosecutor’s entrenched powers under Article 145 of the Federal Constitution to institute criminal prosecutions are curtailed by purported immunity against criminal action. There are no provisions under the WPA 2010 that specify how such curtailment would take effect – for example, whether the enforcement agency would issue a notice to the Attorney General’s Chambers or to the court registry prohibiting them from filing and registering charges against the whistleblower. The author respectfully submits that in the event of a conflict between an enforcement agency’s conferment of protection over a whistleblower versus the discretion of the Public Prosecutor to institute criminal charges, the Public Prosecutor’s power shall supercede and the result is that the conferment of protection and even the provisions of Section 9 and subsection 7(1)(b) itself becomes unconstitutional and void, to the extent that criminal action is read to refer to criminal prosecution. A harmonious interpretation of the meaning of “criminal action” that does not render the provision unconstitutional should therefore exclude criminal prosecution from the ambit of “criminal action” under the WPA 2010. Contrary to the aims of the WPA 2010, such scenario would frustrate the whole point and concept of immunity.
Civil suits filed by the person complained against for breach of non-disclosure or terms of secrecy, defamation or other torts. Provided that the civil suit is connected to the disclosure of improper conduct, the whistleblower protection should be given recognition by the court itself. However, the WPA 2010 lacks provisions to enable the enforcement agency to affect the institution, proceedings or outcome of such civil suit, notwithstanding the WPA 2010 purports to confer protection from civil action. It is submitted that the level of detail in the legislative mechanism for detrimental action is missing in relation to civil action. For example, there is no provision to enable an enforcement agency to intervene in such civil proceedings. It is respectfully submitted that there is no basis for the enforcement agency to prevent civil actions. However, the whistleblower who is named as defendant may rely on their whistleblower status in support of their application to strike out the suit under Order 18 rule 19 of the Rules of Court 2012. At the very least, an officer from the enforcement agency should affirm and affidavit confirming the conferment of the whistleblower protection upon the defendant. This could be a workable mechanism for the court, but not the enforcement agency, to give effect to Section 9 of the WPA 2010.
Detrimental action as defined under the WPA 2010. It is respectfully submitted that the mechanism for addressing detrimental action is well-designed and provides adequate protection for the whistleblower. Unfortunately, there is nothing in the law to oblige the enforcement agency to sue the party guilty of detrimental action. There is no fund established to enable the enforcement agency to fund the defence of whistleblowers against detrimental action. An enforcement agency has referred informants to legal practitioners for advice and representation on alleged detrimental action (names withheld, personal communication, Putrajaya, 4 February 2021). In an interview with a whistleblower, the subject informed that he held a leading managerial post in an institution that committed detrimental action against him (name withheld, personal communication, Bandar Baru Bangi, 10 May 2022). Not only did he have to appoint his own lawyer and pay legal fees, he was directed by the board of directors to sign cheques issued by the institution to pay the legal fees of the lawyer who went against the whistleblower in the civil suit. Furthermore, the enforcement agencies that he disclosed to did not take any action against the institution nor offer to use their powers to combat the detrimental action in his favour.
An example of non-institutional dangers is physical retaliation from the person against whom they complained, social ostracization, commercial and economic embargo, spiritual abuse, and others. Essentially there is nothing in the WPA 2010 that protects whistleblowers from such dangers. However, the WPA 2010 can protect the anonymity of the whistleblower and confidentiality of the information disclosed. There are other laws such as the Witness Protection Act 2009 [Act 696] that offer some broad, if limited protections on them concerning the relocation and protection of witnesses from actual danger to them, the adoption of an entirely new identity and a blanket sanction to insist that the new identity is the true identity of the witness unless they are given an order by the Director General otherwise.
Enforcement Agency not obliged to receive reports nor recognise reports as disclosure.
Section 6(3) of the WPA 2010 requires the enforcement agency to reduce disclosures into writing, if the informant has provided the same orally. Section 12 obliges the enforcement agency to actually carry out an investigation and prepare a report.
When the WPA 2010 was enacted, there was no corresponding amendment of other Acts governing other agencies that also receive complaints and information from the public, for example Section 107 and 107A of the Criminal Procedure Code, Section 29 of the Malaysian Anti-Corruption Commission Act 2009 and Section 140 of the Securities Commission Act 1993. It is respectfully observed that this non-amendment leaves room for an enforcement agency to not recognise an information or complaint received as being a disclosure of improper conduct under Sections 6 and 7 of the WPA 2010. There have been bona fide informants who provided disclosure of improper conduct of officers of an enforcement agency in Putrajaya, but the enforcement officer tasked to receive and hear them just annoted the information in his investigation diary but informed that he will not open a file into the matter (personal communication, Putrajaya, 25 January 2022, and another personal communication, Bandar Baru Bangi, 10 May 2022). It is respectfully submitted that the enforcement agency receives and treats disclosures on a case by case basis, with much greater discretion on whether to act on such disclosure, than required by Section 7 of the WPA 2010.
Revocation Process and its risks.
The protection conferred by Section 9 of the WPA 2010 is extinguished the moment the enforcement agency revokes the immunity under Section 11 of the WPA 2010, with the whistleblower being conferred a right to review such revocation in a court of law. Though Section 11 provides that the enforcement agency shall notify the whistleblower of the revocation, it is not clear whether the protection subsists if there is failure by the enforcement agency to notify the whistleblower. The process of review itself could defeat the whole point of protection because there is no provision to guarantee the anonymity of a person who filed an application for judicial review against the decision to revoke the whistleblower status. As at the date of this writing, a file search by a law firm or a determined inquiry through the e-kehakiman portal by any member of the public can reveal the particulars of such aggrieved person. Hopefully there is or there will be a Practice Direction issued by the Chief Registrar’s Office so that courts suppress such information from public search.
This is contrasted with the protection conferred upon young offenders and witnesses who are children (Child Act 2001 and Evidence of Child Witnesses Act 2007), as well as informers in cases involving terrorism or organised crime under the Security Offences (Special Measures) Act, where anonymity (if given) is guaranteed from all stages of a case from the charge sheet all the way to appeal, subject to the Court’s discretion.
Perspective of the Accused person on the receiving end of the disclosure of improper conduct.
To preserve anonymity and confidentiality, the WPA 2010 does not require the enforcement agency to consult or obtain the consent of the party alleged to have committed the improper conduct.
The accused party may be deprived of the right to due process and a fair investigation because they are denied the right to confront their accuser. In such scenario, the law appears to require the accused party to trust that the enforcement agency has verified the truth of the allegation of improper conduct, on their own and in absence of the accused party. While this is the norm for a normal criminal investigation, it is a departure from the norm for a criminal trial. An accused party’s ability to conduct an effective defence would be seriously impaired if they were unable to cross examine the whistleblower to test their veracity and truthfulness. It is respectfully submitted that the protection of confidentiality arose out of public policy where the Government has balanced the needs to effectively prosecute crime versus the human rights of accused parties. The author is not aware of how rigorously such balancing act was carried out because it is not reflected in the Hansard. Two possible solutions are respectfully suggested to help mitigate this dilemma, though it is still not ideal:
The confidential information is still disclosed by the prosecution to the Judge during the proceedings, who will then examine the whistleblower under an inquisitorial process. The whistleblower is physically out of sight.
Another way is for the information from the whistleblower (for the lack of a better term, because some schools of thought would not accept it as evidence) to be conveyed to the accused party indirectly, for example by text handed over in open court. The defence counsel would then write out the cross examination and tender the same to the Judge, who then directs the cross examination to the whistleblower, who remains out of sight. The Court’s duty in such scenario is to ensure that the provisions of the WPA 2010 are enforced and the confidentiality of the disclosure and well as the identity of the whistleblower is protected. One of the proceedings for cases tried under the Security Offences (Special Measures) Act includes a similar procedure for examination of protected witnesses so as to avoid them being identified by the accused while still affording some ability to the accused to cross examine them, albeit in an impaired manner.
Finally, the accused party should have the right to make an application to the court or to the enforcement agency to effect the revocation or temporary suspension of the whistleblower status. This may be an onerous provision to enact, because it is expected that the accused party may never learn the identity of the whistleblower and therefore would be unable to furnish any meaningful particulars to the court or the enforcement agency to enable them to review the conferment of whistleblower status with a view of revocation.
CONCLUSION
The WPA 2010 was well received when it was enacted into law. Together with the Witness Protection Act 2009, the Malaysian Anti-Corruption Commission Act 2009, and other related laws, the Government was on a laudable path to institutional reform to help combat corruption. For a developing country, institutional reform is indeed needful for sustainable governance.
Although the WPA 2010 provides a workable scheme of protection of informants with the unprecedented provision of actual legal immunity, there remains some aspects that may discourage informants from coming forward, and this is reflected in the low take-up rate for whistleblowers to the MACC. For one thing, the straightforward if unspecified mechanism for conferment of whistleblower protection and the fact that the conferment is subject to revocation are two factors that may cause potential informants to pause and reconsider whether it is worth the risk to come forward. Fundamentally the WPA 2010 falls short of the purpose underlying the principle of UNCAC, which is to draw out accomplices of crime. It appears that the legal framework is mainly concerned with control or suppression of information at the expense of protecting the informant.
From another angle, to have value and meaning, the WPA 2010 should be implemented on actual accomplices and criminal abettors. The revocation provision suggests that the enforcement agencies may revoke the immunity if it is found that the informant was involved in the crime complained of. This indeed calls into question the attractiveness of whistleblower protection to such valuable informants. Innocent people who are not accomplices and abetters do not need the WPA 2010; they would not be charged anyway. The WPA 2010 is precisely for offenders. It is noteworthy that some court judgments have adopted rigid interpretations that make it more onerous for an informant to be conferred whistleblower protection. 12 years on, there are very few reported cases in the law journals that touch on its provisions. The comparatively small number of reported court cases is also a telltale sign that the WPA 2010 is underutilised, or even unattractive to informants. Hence, the low take-up rate is across the board from the enforcement agencies up to the Courts. Hence, the framework is not working.
It is respectfully submitted that the WPA 2010 should be reviewed to study its track record of proper implementation so that it can be incorporated into the broader national strategies for sustainable governance, in keeping true to the courageous spirit of the UNCAC.
[a] The explanatory speech from the said Deputy Minister and the debate concerning the Whistleblower Protection Bill 2010 is published in the Hansard and referenced at page 41, 12.35pm (DR 20.4.2010) Dewan Rakyat Parlimen Dua Belas, Penggal Ketiga, Mesyuarat Pertama.
[b] UNCOC provided at Article 37 Paragraph 3 that, “Each State Party shall consider providing for the possibility, in accordance with fundamental principles of its domestic law, of granting immunity from prosecution to a person who provides substantial cooperation in the investigation or prosecution of an offence established in accordance with this Convention.” https://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf
[c] https://www.unodc.org/documents/treaties/UNCAC/CountryVisitFinalReports/2018_11_16_Malaysia_Final_Country_Report.pdf
[d] https://www.freemalaysiatoday.com/category/nation/2022/01/06/azam-demands-apology-rm10-mil-from-whistleblower/ and https://www.nst.com.my/news/crime-courts/2020/09/625487/company-deputy-director-charged-sacking-whistleblower-who-exposed and please see. https://www.malaymail.com/news/malaysia/2022/05/14/health-d-g-says-looking-to-improve-whistleblower-system-to-stop-bullying-in/2058839
[e] Sections 6(1) and 7(1) of the WPA 2010.
[f] As defined by Black’s Law Dictionary, Ninth Edition (2009), Thomson Reuters, St. Paul MN, at p. 1734. This edition was published the same year that the Whistleblower Protection Bill 2010 was tabled.
[g] https://www.merriam-webster.com/words-at-play/whistle-blower-blow-the-whistle-word-origins
“Whistleblower: A History”
[h] Scribner-Bantam English Dictionary, Revised Edition, originally published in 1977, at page 1035.
[i] Collins English Dictionary, Second Edition (2012), originally published 2008, at page 879.
[j] Translated by the author.
[k] The official version for the Dangerous Drugs Act 1952 remains in the English Language. However, decision by the Malaysian courts suggest that “informer” as provided under Section 40 of the said Act is translated to “pemberi maklumat”. Please see the Court of Appeal decisions in Muhammad Azhar Muhammad Zaini v PP [2018] MLRAU 12 at para. [30] which also interpolates the term “sumber”, and Kumaran Naidu Tanimele v Pendakwa Raya [2015] MLRAU 116.
[l] Mohd Rosli Ani v Pengerusi Lembaga Pencegahan Jenayah & Ors [2021] MLRHU 567. “[103] Having said that, if there was credible evidence (which there was not), that the Applicant was a whistleblower, he would have been entitled to the immunity prescribed by s 7(1) (b) and by pure and simple operation of law, would be entitled to a Writ of Habeas Corpus being issued for his release from preventive detention.”
[m] Yushri Zainudin v Silterra Malaysia Sdn Bhd [2017] MLRHU 1643 at paragraphs [29] – [32].
[n] Mohd Rosli Ani v Pengerusi Lembaga Pencegahan Jenayah & Ors (supra); and Syed Omar Syed Agil v Institut Profesional Baitulmal Sdn Bhd (Encl 59) [2017] MLRHU 1873, where the High Court found that the applicant qualified as a whistleblower and entitled to protection. “[12] In particular, the plaintiff in his capacity as chief executive officer of the defendant, made certain disclosures of improper conduct by employees of the IPB to the MACC on 14 August 2015 and to the PDRM on 1 September 2015. It is therefore the decision of this court after considering the surrounding and supporting facts and circumstances that the plaintiff qualifies as a whistleblower under Act 711.”
[o] Noorazlina binti Shamsuddin v Pendakwa Raya [2016] 1 MLRH 506. “[31] Malah, tidak pernah pada bila-bila masa, juga tiada sesiapa yang telah membantu siasatan pada peringkat awal oleh pihak penguat kuasa dan telah memberikan maklumat yang belum tentu diputuskan sama ada benar atau palsu tanpa disiasat secara lanjut, wajar diiktiraf sebagai "Pemberi Maklumat" dan dilindung di bawah Akta. Konsep ini adalah salah secara nyata dan saya tidak bersetuju dengan hujahan peguambela pemohon yang mencadangkan sebaliknya mengenai perkara ini.”
[p] Dr Milton Lum Siew Wah v Majlis Perubatan Malaysia [2019] MLRHU 757 at paragraphs [30] and [31], and Anbuselvan Sinnasamy v Indah Water Konsortium Sdn Bhd [2018] MELR 351 at paragraph 45; upheld by the High Court in [2019] MLRHU 282.
[q] Rokiah Mhd Noor v Menteri Perdagangan Dalam Negeri, Koperasi & Kepenggunaan Malaysia & Ors and Another Appeal [2017] 2 MLRA 672 at paragraph [33]. “[33] Therefore, to seek protection under the WPA, the person disclosing the improper conduct must make the disclosure only to any of these enforcement agencies and to no others. In the present case, clearly Rokiah and Azryain did not qualify as whistleblowers as other than disclosing the alleged improper conduct to members of CCM and the Anti Corruption Commission, the disclosure was also made to the following third parties none of whom is an “enforcement agency” within the meaning of s 2 of the WPA.”
[r] Pages 105-106 of the referenced Hansard (supra).
[s] As issued by the Legal Affairs Department of the Prime Minister’s Department and disseminated to the relevant enforcement agencies: https://www.bheuu.gov.my/pdf/Garis%20Panduan/wba/GARIS_PANDUAN_AKTA_711.pdf
[t] Noorazlina binti Shamsuddin v Pendakwa Raya (supra). “27.3 Bukanlah atas inisiatif pemohon sendiri yang terlebih dahulu mendedahkan atau melaporkan aduan tentang kesalahan salah laku dalam transaksi projek seperti mana yang tertera dalam pertuduhan-pertuduhan tersebut. Pemohon hanyalah membekalkan maklumat kepada pihak SPRM berhubung dengan perbuatan salah laku yang dilakukan oleh pihak atasannya iaitu Azizi dan Manivannan apabila pemohon ditangkap untuk disiasat (sila lihat kes PP v. Ang Seng Thor [2011] SGHC 134)”
[u] Sections 7, 8, 9 and 10 of the Witness Protection Act 2009 prescribes over 30 subsections of conditions, whereas Sections 6 and 7 of the WPA 2010 prescribes no condition for conferment of whistleblower status, except that the information disclosed is done with reasonable belief and it is made to an enforcement agency.