Note: this article, featuring Government Accountability Project, was originally published here.

Revise Whistleblower Act

In Malaysia, there is the Whistleblower’s Protection Act 2010 (WPA), a good safety measure for those who are putting themselves at risk in revealing a secret.

The more important issue is that the disclosure (information leak) cannot be prohibited by law (Section 6 of the WPA); disclosure can only be made to the government (section 6 and 8 of the WPA) and that certain whistleblowers cannot be protected under the Act (section 11 of the WPA).

This leaves a small window of occasions where whistleblowing is allowed and can be protected under the Act.

For a comparative assessment, the UK’s Public Interest Disclosure Act should be considered.

In fact, in the UK and the US, there is an independent (oversight) authority that deals specifically with whistleblowing.

They are the Public Concern at Work or PCaW (UK) and the Government Accountability Project (US).

In Malaysia, a landmark case is Rafizi Ramli v Public Prosecutor [2014] 3 MLJ 114.

What’s important is that the whistleblower was not protected under the WPA because the information leaked was against the law [the now-repealed Banking and Financial Institutions Act (BAFIA), replaced with the Financial Services Act].

Another case in point is Rokiah Mohd Noor v MPDNKKM & Ors And Another Appeal [2016] 8 CLJ 635, where the whistleblowers were not protected under the WPA because they had not made the disclosure to any enforcement agencies, a breach of section 6 of the WPA, leaving them unable to seek protection under section 10 of the WPA.

To put this into context, key enforcement agencies include the Malaysian Anti-Corruption Commission (MACC), the Immigration Department, Royal Malaysian Customs and the Malaysian Prisons Department.

The primary agency here would be the MACC, which has standard operating procedures on how whistleblowing is dealt with.

It can be said that whistleblowing is a relatively new term in the Malaysian legal vocabulary.

The WPA was formulated in 2010 but before then, there were no laws that truly addressed “whistleblowing”.

One could come to the conclusion that it was born out of the Internet age and the fact that whistleblowing had become a global phenomenon.

The only worthy point to note here is that the WPA is, perhaps, in need of a revision.

Why do we need to worry about whistleblowers? Is celebrating them not sufficient? The answer to that is no. Most whistleblowers have a tragic end.

Recently, a Federal whistleblower in the US, a long-time DHS official, was found dead by gunshot in California.

His crime? He had penned a book criticising the former US president Barack Obama’s administration.

Sean Hoare (the journalist who was considered the primary whistleblower in exposing News of the World’s phone hacking scandal) had a similarly tragic end.

Let’s not forget that a Malta car bomb killed the journalist (Daphne Caruana Galizia) who exposed the Panama Papers.

Some would argue that their demise has nothing to do with their act but look closely and think again.


Kuala Lumpur