Law needs to be less punitive, friendlier to whistle-blowers, says lawyer

Topic: Whistleblower Protection Act

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Coverage by: The Malaysian Insight

Aminah Farid

A REVIEW is needed to the Whistleblower Protection Act 2010 to make it less punitive and friendlier to them, lawyer Joachim Xavier said today.

He said while it is good to have an act in place to protect whistle-blowers, it still requires some serious reviews, particularly in respect to the restriction that such informants are only allowed protection if they reported it to selected enforcement agencies.

The Whistleblower Protection Act 2010 protects those who make disclosures of improper conduct to an enforcement agency by safeguarding their confidential information and according protection to them against detrimental action by others.

Under the Act, a person can make disclosures to seven agencies to get the protection, including the police, customs department, immigration department, the Malaysian Anti-Corruption Agency (MACC), the securities commission, the Companies Commission of Malaysia (CCM) and the Road Transport Department (RTD).

Joachim was speaking as part of a panel during a Center To Combat Corruption and Cronyism’s (C4 Centre) seminar on whistle-blowers vital role to stem corruption in the workplace earlier today.

“It has to be more inviting of the whistle-blower, if not, I don’t see any significant change of whistle-blowing or significant increase in whistle-blowers occurring in Malaysia and yet we know that whistle-blowing is the best way to expose corruption, so I think that needs some serious relook,” said Joachim who is a partner at legal firm Nadzarin Kuok Puthucheary and Tan.

“I’ve also represented clients who have had reasonable suspicion in which the Criminal Procedure Code creates a legal obligation to report the matter to authorities, however, authorities would then turn their backs and start questioning my clients instead of investigating the report,” he said.

“So, we remind the officers that my client has a reasonable suspicion of an offence taking place under the corruption laws and it is your job to investigate,” he said.

He said there were also instances where enforcement agencies informed them that a report would be made against his client for misreporting only because his client was not in a place to give authorities access to all the documents needed and was unable to prove the reasonable suspicion.

Joachim said while whistle-blowing was one of the most effective ways to reveal corruption, the lack of protection for them deters potential whistle-blowers from coming forward.

Malaysia now ranks 57 out of 180 countries in the Transparency International Corruption Perceptions Index 2020, dropping from 51 last year.

Malaysia also scored 51 out of 100 in the index that measures perception on public sector corruption, compared to its 2019 score of 53.

Another panellist, K.M. Loi, a board member of The Malaysian International Chamber of Commerce and Industry, said corruption could not be tackled without the decent willingness of an individual to blow the whistle.

He said, in the corporate world, a whistle-blower protection programme is an important element in detecting fraud, wrongdoing or any other desirable conduct.

As such, Loi said, it is a necessary ingredient in shaping good corporate governance.

“Whistle-blowers often pay a high price by taking a personal risk in reporting misconduct and other complaints, therefore they must be protected and not persecuted to curtail and combat corruption.

Like Joachim, Loi also said that whistle-blowing is one of the cheapest and most effective tools to fight corruption. – August 12, 2021.




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