The whistleblower, who grabbed headlines over an alleged corruption scandal in Sabah where he claimed he has audio and video evidence is reminiscent of the Watergate scandal of President Nixon of the US.
Hence, the term SabahGate.
The protection granted under Section 7 of the WPA as requested by the whistleblower in the SabahGate issue currently in the news is not absolute.
Section 11 of the WPA 2010 - Revocation of whistleblower protection - reproduced ad verbatim states;
The enforcement agency shall revoke the whistleblower protection conferred under section 7 if it is of the opinion, based on its investigation or in the course of its investigation that:-
- the whistleblower himself has participated in the improper conduct disclosed;
- the whistleblower wilfully made in his disclosure of improper conduct a material statement which he knew or believed to be false or did not believe to be true;
- the disclosure of improper conduct is frivolous or vexatious;
- the disclosure of improper conduct principally involves questioning the merits of government policy, including policy of a public body;
- the disclosure of improper conduct is made solely or substantially with the motive of avoiding dismissal or other disciplinary action; or
- the whistleblower, in the course of making the disclosure or providing further information, commits an offence under this Act.
- If the whistleblower protection has been revoked, the enforcement agency shall give a written notice to that effect to the whistleblower.
- Any person aggrieved by the decision of the enforcement agency may refer the decision of the enforcement agency to the court for determination.
- The court may make an order for the preservation of the whistleblower protection and may also make such consequential orders necessary to give effect to the order for relief.
PM10’s response to the whistleblower in SabahGate that protection is only for those who are squeaky clean was clearly made in accordance to Section 7 read in conjunction with Section 11 of the WPA and Section 17(b) of the Malaysian Anti-Corruption Commission Act which makes it an offence for a person to corruptly give, agree to give, or offer any gratification to another person.
The Chief Commissioner of MACC also said the same thing when asked about this, that MACC may revoke that immunity under certain circumstances.
Presumably, he was referring to Section 11 of the WPA.
Yes, there are arguments that said who else but the bribe giver could provide this level of evidence.
Yes, whistle-blower protection is crucial for the success of anti-corruption drive by PM10.
In the SabahGate case, while the whistleblower claimed he has met with MACC together with his lawyers, concurrently the matter was widely reported in the media.
At this time, where he has yet to be given protection, 2 of the so called 8 audio and video clips went viral on social media and the internet.
Reportedly, he even wrote an OPEN LETTER to the YDP Agong and also to PM10 on this.
In his open letter to the YDP Agong, he clearly states that he knew that the protection under Section 7 of the WPA could be revoked as advised by MACC.
Thus, he is, openly, seeking the help of YDP Agong to direct MACC and relevant authorities to provide him with a written assurance which must be irrevocable, that any evidence and information he provides will not be used to prosecute him.
This obviously make it problematic for the authorities.
They have to adhere and follow the rules and regulations sets out in the WPA and the Malaysian Anti-Corruption Commission Act.
If they make an exception, they will be damned later.
By adhering to the rules now, they are already damned by civil society.
That said, a key driver of whistleblowing is often because the whistleblower placed a high value on truth.
Various researches have shown that all whistleblowers shared certain common characteristics.
Integrity.
A sense of responsibility, courage and a strong ethical orientation.
Strong moral judgement.
While the WPA is well intended, it is deficient in many important respects.
The ability of MACC and other enforcement agency to revoke protection extended to whistleblowers under the WPA are examples of some shortcomings of the WPA.
Probably the good thing that arised out of this SabahGate is for civil society to pursue and impress upon the lawmakers to amend Section 11 of the WPA to ensure that the whistleblower may still enjoy protection even if the whistleblower was a participant in the improper conduct as long as the whistleblower was not the principal or mastermind of the misconduct and the extent of such protection, to be exercised by an independent authority or oversight authority.
Such an independent authority may receive and act upon recommendations of the relevant enforcement agencies when considering the exercise of such discretion.
At present, Section 11 (1) (a) of the WPA is inflexible.
The objective of the WPA is to bring forward disclosure of wrongdoing, the motive behind such disclosures should be considered as secondary.
It would serve the fight against corruption and the objective of the WPA, if it provides for discretion in extending to them protection and the extent of such protection, in appropriate cases and circumstances.
This would, in future, encourage whistleblowers who were part of a scheme to come forward.
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