PRESENTING WHISTLEBLOWING — A PUBLIC GOOD THAT IS TIMELY | Letters to the Editor
The advent of a whistleblower law before Parliament, the third attempt, is a welcome initiative. Legislation to encourage and protect whistleblowers to combat corruption and wrongdoing in public and private companies is a relatively new but important phenomenon worldwide, recognized, for example, in the United Nations Convention United against corruption.
Whistleblowing is not just about corruption related to financial transactions. It can encompass a wide range of activities that threaten society and its development. Think of Erin Brockovich, for example.
The law is needed because the weight of existing legal norms militates against people who come forward to report wrongdoing, siding with the employer, leaving the whistleblower vulnerable, albeit principled. This must be rectified if we really want to protect our democracies.
Is the proposed bill perfect? No. Such laws are notoriously difficult to conceptualize. Different interests and objectives collide. The rights of the whistleblower to freedom of expression and fair labor practices conflict with the rights to reputation and fair treatment of the person complained about. In addition, there is the general objective of eliminating corruption, enhancing transparency and accountability within the public sector and society.
Such laws require a balance – a restriction of certain individual rights to protect other rights in the public interest. In the UK there are horrific stories of whistleblowers not being sufficiently protected.
This is proof that politics must err on the side of protecting whistleblowers, without seeking to safeguard the interests of those who may be the perpetrators of wrongdoing.
This requires a conscious political choice, determining that transparency is the priority. We must avoid seeing the law through too narrow prisms. Ultimately, the law is about the public good. For example, believing that potential corruptors have more privacy rights than the public’s right to know is a false positive.
This goes against some ingrained legal principles that oppose whistleblower protections, and will need to be streamlined, including on classified/inside information, commercial confidentiality principles and industry life. public, banking secrecy, protection of personal data and, above all, the implicit conditions of employment. , such as the duties of trust and loyalty. The courts have been reluctant to depart from it. A radical reorientation is therefore necessary.
Part of the value of this legislation is to build. Our goal should not be to legislate to fit the culture and the status quo, but rather to reshape the culture, just as seatbelt and drunk driving laws have created seismic change in our behavior. This is the very essence of law as social engineering.
Admittedly, the penalties are draconian for those whose information turns out to be false. However, an appropriate balance is struck under section 19 since it seeks to protect those who report in good faith (protected disclosures under section 8) but does not protect those who are merely troublemakers. .
The rule of law is not violated if the first group enjoys protection. For false whistleblowers, legal sanctions and the ability to sue remain. Notably, the offense here is to “knowingly” make a false statement, which is a high threshold to cross.
Admittedly, this could also deter bona fide whistleblowers who are unsure of the accuracy of the information, but are genuinely concerned, given the poor signal – so the section needs to be understood.
Many of us have been victims of false disclosures, misdeeds and untruths, but such dangers cannot be allowed to strangle the ability for true whistleblower protection.
Some whistleblowers may not be genuine, as may some accusers of sexual harassment. Yet the priority must be to encourage people to come forward and overcome the huge power disparities that now exist within the law in such relationships.
The law must recognize vulnerable people. Otherwise, it becomes too difficult for anyone to come forward. That’s what the Me Too movement did. He went to the other extreme to offer strong protection, so that the societal benefits of eradicating the plague outweigh the occasional false accuser. This is the purpose of whistleblower legislation which provides the tools to protect and incentivize people who might otherwise be vulnerable.
Using special courts rather than courts like in Canada would certainly provide better access to justice. Going to court is difficult and expensive. However, such legislation must be separate. It is not possible to use the example of the IRA. This law is for unionized employees and will leave out a large percentage of workers.
Moreover, it is limited, intended to deal with industrial relations and not all employment matters, unlike other comprehensive labor codes. The law rightly encompasses the public and private sectors and could even have extended to public disclosures, for example to newspapers.
A few years ago I was part of a group of international experts, many of whom were behind whistleblower legislation in the UK and elsewhere and also co-hosted the Cambridge Symposium on Financial Crime , which emphasizes whistleblowing.
A workshop planned here fell through when the legislation was dropped. Creating a law is just the beginning, as education and awareness must follow if we are to change the culture, reassure the skeptics and fearful, and bring about meaningful change.
Laws like these can encourage people to behave differently in the face of wrongdoing in society, to identify our responsibilities as citizens towards them – not to turn a blind eye.
Ultimately, a paradigm shift is needed to instill the standards of transparency necessary for adequate whistleblower protection, situating the rule of law within the framework of broad social goals, not individualistic ones. narrow. Yesterday, then, is the time for such a progressive step in our nation’s democracy if we really want real change toward accountability and, ultimately, development.
Like democracy itself, there are flaws in such legislation; it’s a work in progress, but should be considered the best option.
—The author is vice-chancellor pro
Graduate Studies and Research, and Professor
labor law and offshore financial law,
The University of the West Indies