The Whistle Blower’s Dilemma
Thursday, August 30 2012
ONE of the most direct methods of exposing corruption is whistleblowing. Unfortunately, whistle-blowers commonly face retaliation in the form of harassment, firing, blacklisting, threats and even physical violence, and their disclosures are routinely ignored.
Transparency International believes that the individual right to freedom of expression includes the right to identify acts of wrongdoing – both in government and in private companies. In addition to this basic right the simple fact is that people who step forward to disclose wrongdoing – particularly when public safety, health or resources are at stake – should be acknowledged and protected, not punished and ostracised.
Transparency International (TI) defines whistleblowing as the disclosure of information about a perceived wrongdoing in an organisation, or the risk thereof, to individuals or entities believed to be able to effect action. In some countries, blowing the whistle can carry high personal risk – particularly when there is little legal protection. Through Transparency International’s Advocacy and Legal Advice Centres (ALAC), located in nearly 50 countries, TI advises whistle-blowers in making their disclosures and works to ensure that their disclosures are duly addressed by appropriate authorities. To promote responsible whistleblowing and adequate protection of whistle-blowers, TI developed international principles for whistle-blower legislation, which many countries and international organisations have used to develop their own legislation and standards:
Jamaica adapted 22 of TI’s 27 best practices recommended in this legislation. In December 2010, the Protected Disclosures Legislation (Whistle-blower Act) received the full backing of Jamaica’s Upper House.
At Trinidad and Tobago’s annual Anti-Corruption Conference in 2011, Canadian whistle-blower Allan Cutler shared some interesting insights into the reality of a whistle-blower’s experience in today’s society and acknowledged that, oftentimes,, “the whistle-blower gets side-lined; the wrongdoer gets promoted.” But does this mean that one should not blow the whistle? Does this reality justify silence? Absolutely not. Trinidad and Tobago may do well to follow in Jamaica’s footsteps and adopt Whistle-blower legislation.
There are many ways to “blow the whistle.” Cutler noted the impact of modern communication devices such as the phone camera, YouTube and social media which have all made privacy a thing of the past. He also asserted that there is an imperative need for cultural change as laws cannot be effective unless people value the law. At the same time, positive cultural change must be complemented by laws that reflect a national commitment to such change. Ultimately, cultural change emerges from beliefs established at home that are often translated into a particular disposition towards ethical behaviour.
Whistleblowing is about solving a problem. It is not about getting people in trouble or being a tattle tale. It is about improving the community. A whistle-blower must have moral courage which, according to Cutler, comprises:
• A situation of danger
• A willingness to endure hardship
Corruption is not the product of a solitary participant. Actors that enable corruption to persist include the perpetrator, active participants, reluctant participants and passive participants. However, you, our avid reader, can be the actor that makes a change. This requires a willingness to take the ultimate risk and be the whistle-blower. This decision is not without personal and professional risks such as intimidation, demotion, firing, forced transfer, isolation or sham investigations. In the end, it is a matter of personal integrity and a deep rooted belief in fairness. The fight against corruption is one that requires relentless action. It is the journey that matters. If we don’t strive to improve, we never improve.
Anti-corruption is in the best interest of everybody and adequate disclosure mechanisms can and will benefit government. If whistle-blowers trust that something will be done they will report it. In this regard, legislation is imperative – you must first have a law to improve. Cutler noted that in drafting whistle-blower legislation there is the need to include a “reverse onus of proof” provision. It should be the job of retaliators to prove that they are not retaliating against the whistle-blower. They should be able to prove that everything is above board and things are going right. Given the risks, whistle-blowers place paramount importance on confidentiality. Legal provisions must include making it an offence to reveal the existence of the investigation or details of the investigation as well as making it an offence to give information knowing that it is false.
Under US Law, a whistle blower is an employee who “tells” on an employer because he or she reasonably believed that the employer committed an illegal act. American intelligence whistle-blowers such as Sibel Edmonds, Russell Tice and Ishmael Jones were fired for exposing abuses of and injustices in the system. Like their UK counterparts - David Shayler, Katharine Gun and Richard Tomlinson - they all experienced tremendous persecution, and were generally inconvenienced, blocked or stalled from testifying before a committee and the courts. However, Edmonds, Tice and Jones eventually did find recourse through the US Congress and the various House and Senate Committees. Trinidad and Tobago may consider adopting similar Committees to protect our democracy. Maybe we as a nation need to place emphasis on enacting Whistle-blower legislation and encouraging a culture of moral courage and ethical living.
This article was contributed by the Trinidad and Tobago Transparency Institute
The views expressed in this column are not necessarily those of Guardian Life of the Caribbean Limited.