Insights

The aim is to escalate a problem until it is indeed acted upon rather than allowing a problem to be hidden or forgotten. People do not do wrong if they risk being exposed and prosecuted – therefore the greater the risk of exposure and prosecution, the lower the likelihood is that a person will commit wrong-doing.

Kevin Aquilina’s article “A whistle-less whistleblower” (Malta Today Sunday 6 April, 2014) raises some interesting points on the Protection of the Whistleblower Act, 2013. This Act may be described as revolutionary in the protections it affords to whistleblowers under Maltese law. Prior to its enactment Maltese whistleblowers were protected only by sporadic provisions incorporated in different pieces of legislation – therefore the enactment of a comprehensive act affording the Maltese whistleblower protection from a wide range of reprisals is a huge step forward. Maltese culture in itself seems to favour secrecy and non-reporting and therefore the enactment of a law which seeks to change this culture of “omerta” is a big step forward in itself.

The Act protects an employee who makes a protected disclosure about an improper practice committed by his employer, from detrimental action. The employee/employer relationship implies duties of loyalty and confidentiality – hence need for protection of the employee who breaches this duty by disclosing information about his employer. The definition of “Employee” in the Whistleblowing Act is a very wide one and includes private sector employees, volunteers in terms of the Voluntary Organisations Act and public administration employees. Members of disciplined forces, members of the Security Service and persons employed in the foreign, consular or diplomatic service of the government also included but Act shall not apply to them until the Minister issues regulations regulating the manner in which the Act will apply to them.

In light of the above mentality and the radical changes in mentality that this law seeks to introduce and keeping in mind the sensitive nature of the duties performed by members of a disciplined force etc, it is perhaps understandable that the Act currently excludes these persons from its scope. Having said that, the Act does not completely exclude its application to such persons but merely defers its application until such a time as the Minister responsible for justice deems it necessary.

In terms of the Whistleblower Act, protected disclosures are first to be made internally to the whistleblowing reporting officer, who thus acts as a filter and conducts preliminary investigations into a disclosure made by a whistleblower to determine whether there is evidence to support the report made or to refute it. Investigations made by the whistleblowing reporting officer should be fair, objective, impartial and independent of the whistleblower, the unit/department concerned and the person who is the subject of the report made.

In order to encourage whistleblowers to come forward, the whistleblower’s identity is to be kept confidential unless his express consent in writing is obtained. The whistleblowing reporting officer is therefore under an obligation not to disclose the identity of the whistleblower. Although the Whistleblower Act does not specifically punish a whistleblowing reporting officer who discloses the identity of a whistleblower who has not consented to the disclosure of his identity, it is arguable that whistleblowing reporting officers are bound by the provisions of the Professional Secrecy Act by virtue of the fact that they have obtained secret information due to their office, particularly when they are State employees.

Prospective whistleblowers should therefore not be put off by the fact that the Whistleblower Act does not actively punish violations of the principle of confidentiality of the identity of the whistleblower. Any internal whistleblowing policy implemented in an organisation subject to the Whistleblowing Act should emphasize the confidentiality of the whistleblower’s identity and that a whistleblowing reporting officer who discloses a whistleblower’s identity without consent, will subject to disciplinary and criminal proceedings.

The confidentiality of the whistleblower’s identity is but one of the many forms of protection afforded to the whistleblower under the Whistleblower Act. The Whistleblower Act protects an employee who makes a protected disclosure from detrimental action – this is not restricted to occupational detriment but action causing injury, loss or damage, victimisation, harassment etc. This emphasizes the serious intentions of the Whistleblowing Act as the protections afforded under the Maltese Whistleblowing Act extend beyond those afforded under various foreign laws, which often do not go beyond offering protection from occupational detriment. This protects even from administrative action against a whistleblower, although these actions can be distinguished from civil or criminal actions in some contexts.

The Whistleblower Act also makes provision for external disclosures to a prescribed authority. These are seen as a last resort however – the Act prescribes certain specific scenarios when a disclosure outside the organisation it relates to is protected. This is because the Whistleblower Act promotes the making of internal disclosures before escalation to external disclosures – any wrong-doing should be tackled internally when possible to minimise the potential harm to that organisation.

An external disclosure is only protected if an internal disclosure has been made except if the whistleblower believes that: (i) the head of the organisation is involved in the improper practice; (ii) immediate reference to a prescribed authority is justified by the urgency of the matter; (iii) he will be subjected to occupational detriment if he makes an internal disclosure, (iv) it is likely that evidence relating to the improper practice will be concealed or destroyed or (v) that although an internal disclosure has been made, the whistleblower has not been informed of the status of this report and the results thereof.

The Act prescribes certain authorities empowered to receive and process reports in terms of the Whistleblower Act. The media is not listed as an entity to whom protected disclosures can be made in terms of the Whistleblower Act. This is understandable in view of the risks involved in protecting such disclosures. Media decisions are made primarily in terms of newsworthiness rather than on the basis of public interest per se and wide disclosures to the media can be potentially very harmful to the entity about whom disclosures are being made, particularly if such disclosures are unfounded.

In light of all the above, the Whistleblower Act is an excellent first step in changing the culture in Malta which appears to favour secrecy and non-reporting because of fear of reprisals. It is the first comprehensive law to effectively offer protection to those who are on the inside, who know that wrong-doing is being done and who are in a position to bring this to the attention of persons who can stop the wrong-doing.

This article was published in the MaltaToday issue dated 11 May 2014.