MaltaToday | 16 March 2008 | Whistleblowin’ in the wind…

NEWS | Sunday, 16 March 2008

Whistleblowin’ in the wind…

The promise of a Whistleblower’s Act is foremost on the agenda of newly-elected PM Gonzi. But, asks Raphael Vassallo, will it really be a Whistleblower’s Act?

The Prime Minister is under pressure. Nothing new there, but this time the pressure isn’t coming from the Opposition or any lobby group. It is coming from himself: in particular, from the many pre-electoral promises he made up until Thursday 7 March.
Among these is the much-touted Whistleblowers’ Act: a piece of legislation which is now on all parties’ agendas, and is therefore more or less inevitable. There is political pressure for its introduction, too: coming so soon after an election fought out precisely on the battlefield of corruption, Prime Minister Lawrence Gonzi found himself having to order enquiries and investigations into a number of critical allegations. Two of these involved MEPA permits issued for development on ODZ land. In one case – the notorious Spin Valley development in Mistra – the identity of the “missing leak” remains unknown.
This is all fertile ground for institutionalised occultism, and it is not surprising that former Opposition leader Alfred Sant would try to capitalise on the issue by claiming, repeatedly, that his first legislative act as Prime Minister would have encouraged whistleblowers to step forward with their dark tales of government corruption and ineptitude.
It is perhaps for this reason that Dr Gonzi started his second term as Prime Minister with an identical promise. Only this time, he is well aware that such legislation could be used to deal serious damage to his own administration. So while being committed to a Whistleblower’s Act, he is understandably also cautious about its implications.
But what is whistleblowing? Popular wisdom (as in Wikipedia) defines the whistleblower as “an employee, former employee, or member of an organization, especially a businsses or government agency, who reports misconduct to people or entities that have the power and presumed willingness to take corrective action.” But not everyone seems to agree.
Among the dissenters is Gonzi himself, who on a recent edition of Dissett told PBS journalist Reno Bugeja that the legislation would offer protection only to persons who report misconduct… of which they are in part guilty themselves. It was not the first time he added this unusual proviso to the definition: at the “Four Leaders’ Debate” at University three weeks ago, Gonzi also stressed this definition repeatedly, making it clear that the law would only apply to those people who would confess to their own part in the misconduct for the sake of nailing others. It was only when journalist Josanne Cassar gently reminded him that whistleblowers could also be innocent bystanders, that the Prime Minister conceded the point.
It is an important detail, however. For one thing, Dr Gonzi’s definition would exclude some of the world’s most famous whistleblowers (see box); for another, the legislation as proposed would sit uneasily alongside existing legal provisions.
The notion of protection for guilty parties in return for their testimony already exists, in the form of the Presidential Pardon. Here, Gonzi’s law would make an important difference: it would entirely remove all discretion from government, making protection under certain circumstances not a privilege but a legally recognised right. But it would do nothing at all for the casual, uninvolved witness of a crime.
Admittedly, there are existing legal provisions for these, too. Chapter 452 (28) of the Employment and Industrial Relations Act (2 December 2002); and Chapter 16 of the Civil Code (1627A), amended in 2002, both specifically prohibit discriminatory action against persons who ‘in good faith’ report corruption to the relevant authorities. But these provisions apply only to the public sector, exonerating all private entities and effectively creating indirect indiscrimination against private sector employees.
Having a Whistleblowers’ Act would address these anomalies once and for all; but only if we get the definition of the word right.

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Whistleblowin’ in the wind…

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