Protection to whistle-blowers
- to check state corruption
By Nagananda Kodituwakku
[The writer is the former head of the
revenue fraud Investigations [Revenue Task Force - Sri Lanka Customs],
and now a solicitor practicing in the UK]
Last Sunday the Sunday Times highlighted a proposal by the Public Accounts
Committee (PAC) that the Ministry of Finance should encourage "whistle-blowing"
practices found in other countries that help to expose corruption and
malpractices in state institutions. The PSC proposes the enactment of
a public interest disclosure act to enable and encourage public sector
employees to expose corruption and malpractices in the public sector
with a guarantee of absolute confidentiality and protection from any
possible victimisation.
This is a very important proposal in the right direction and the following
exposure is for the benefit of those who are interested in the legal
protection given to whistleblowers in the leading democracies.
In the United Kingdom, the Public Interest Disclosure Act 1998, provides
legal protection to workers who are victimised by employers for "blowing
the whistle" about wrongdoing at work.
Described as the most far-reaching "whistle-blowing" legislation
in the world, it provides clear protection to officials who are dismissed
or subjected to detriment for making certain disclosures i.e. a disclosure
of information which, in the reasonable belief of the worker making
the disclosure, concerns criminal offences, breaches of legal obligation,
miscarriages of justice, health and safety dangers; environmental risk;
or any "cover-ups" relating to these matters.
Under this law, legal protection is also provided to disclosures to
the media as well, but only where the matter is exceptionally serious
and was not raised in the workplace because of fear of victimisation
or cover-up, or where the matter was pursued internally or with a prescribed
body but not dealt with properly.
It further provides, where a worker has made a protected disclosure
and is either dismissed or subjected to any other detriment or persecution
as a result of the disclosure, any such action is treated unlawful and
the worker may seek redress including damages from an employment tribunal.
Dismissal is regarded as automatically unfair if the reason for dismissal
or selection for redundancy is because the employee made a protected
disclosure. There is no limit on compensatory awards in cases of such
dismissal.
Another important feature of this peace of legislation is that any
term or condition in a worker's contract, which purports to prevent
the worker from making a protected disclosure, is treated void. The
British government believes that this legislation can help ensure that
potential disasters are averted and prevent colossal financial losses.
Some time back, the government [Sri Lanka] acknowledged that at least
five Customs officers had left the country in fear of their lives. In
fact, they left because they refused to give into the political pressure
brought upon them by powerful politicos to drop major revenue fraud
investigations ran into hundreds of millions of rupees. These officers
exposed the government wrongdoing through media and after their departure
the Ministry of Finance banned the other officers from speaking to the
media about the tragedy.
Action by the Ministry is considered shortsighted, in a setting where
upright revenue officers who dare to expose government corruption are
targeted and eliminated with the connivance of powerful fraudster-politico-cheats.
It is sad that the government has failed to realise that those officers
who had left the country would have done so had the government taken
the right measures to secure their protection. In these circumstances
the initiative and the proposal by the PAC to protect the whistleblowers
is timely and appropriate action.
[The writer is the former head of the revenue fraud Investigations
[Revenue Task Force - Sri Lanka Customs], and now a solicitor practicing
in the UK]
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