Whistle Blowing

We live in a complicated society. Every decision that we make is based upon our health, safety, economic and human rights. At times the decisions made are by the corrupt, incompetent and lazy, which leads to the compromise of the ethical standards of our society. Accidents happen or corruption flourishes because of employees who know about the wrong doings but are afraid of losing their jobs.

In the modern society, the importance of whistle blowing is increasingly being recognized as a measure to reduce corruption and avoid dangerous situations by encouraging the disclosure of unethical, illegal or prohibited activities performed by private institutions or the government. It also helps to improve the inter-organizational culture and helps improve internal management and efficiency.

Definition

Whistle blowing is a process by which a person claims an occurrence of wrongdoing in or by an organization. Usually the person belongs to the organization and is at a personal risk himself. The allegations made may be internal (to people within the organization e.g. colleagues, subordinates etc.) or external (to people outside the organization e.g. law enforcement agencies, media, regulators etc.).

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U.S academics Marcia P.Miceli and Janet P.Near set the academic standard for whistleblowing in 1982 as “Disclosure of organizations’ member’s (former or current) disclosure of illegal, immoral or illegitimate practices under the control of their employees to persons or organizations that may be able to effect action”.

They have defined whistle blowing as a four step process:

• A triggering event occurs involving questionable, unethical or illegal activities, and this leads to an employee to consider blowing the whistle.
• The employee engages in decision making, assessing the activity and whether it involves wrong doing, gathering additional information, and discussing situation with others.
• The employee exercises voice by blowing the whistle; alternatively the employee could leave the organization, or remain silent out of loyalty or neglect.
• The organizational members react to, and possibly retaliate against the whistleblower.

Common Reactions

Around the globe, whistle blowers have been hailed as heroes or selfless martyrs for revealing fraud and corruption in organizations and preventing potential disasters. They may relate to the cover up harmful diseases like SARS in China to the revealing of theft of millions of dollars of public money in Kenya.

However, in many cases whistleblowers face severe ramifications for their actions. They end up losing their jobs and being ostracized for their activities. Some may be charged with violation of employee contracts and the dangers might be physical at extreme.

It is therefore probable that a lot of people refrain from blowing the whistle due to the fear of retaliation or damaging relationships at work or private life.

Utility of Whistle blowing

Information revealed by whistleblowers is usually highly critical for the society. In China, Dr Jiang Yanyong possibly saved a million lives by revealing the extent to which the SARS virus had spread even though he was ordered by the authorities not to. In the corporate world, Sherron Watkins of Enron blew the whistle over the financial problems of the company internally which eventually led to the exposure of the scam and the arrest of the top officials.

Whistle blowing is also important for improving the internal efficiency of the organization since the employees are the first to know about the problems and early disclosure can lead to remedy of the problem sooner. A 2002 study by KPMG found that around 25 percent of problems reported in an company in Australia was by whistleblowers while the same statistic was 44 percent in Africa.

The essence of whistleblowing lies in the fact that staff are able to by-pass the line of their superiors since at times that might be the area where the problem arises and hence they are able to go outside in case they believe that the whole organization is in an improper course.

Effective whistleblowing is therefore a necessity for a healthy organizational culture, good governance. Successful whistle blowing is when concerns inside the organization could be raised with confidence, properly investigated and addressed when necessary.

Barriers to whistle blowing

1. Fear of retaliation

One of the largest barriers in today’s organizations against whistle blowing is retaliation against the disclosure. Retaliation can vary from minor harassment in certain cases to the extremity of costing one’s life. In a typical case, the employee who blows the whistle would be put under pressure to rescind his words and refrain from further disclosures.

Some of the common practices of retaliation are :

• Marginalise the employee by taking away the job duties.
• Blacklist the employee so that he can’t gain further employment.
• Conduct retaliatory investigations in order to divert attention from the matter and abuse the whistleblower.
• Question whistle blowers professional competence, honesty and mental health.
• Reassign the employee so that he/she is unable to do the job

At times, retaliation becomes extreme as Satyendra Dubey was murdered after he revealed corruption on a road project.

2. Legal liability

There are significant legal barriers to whistle blowing in several countries. At times there are no significant laws or acts for whistle blowing(e.g. India). These include the traditional laws to respect the employer, act in his best interests etc. There may also be secret laws in institutions to punish whistle blowers and deter further whistle blowing.

a. Duty of loyalty and confidentiality

Many countries in Asia have is the duty of loyalty and fidelity to the employer. This usually deters an employee from expressing personal opinion or revealing internal information.

The Indian Law Reform Commission has recently recognized that while a public servant might be subject to the duty of confidentiality, it doesn’t extend to remain silent regarding the corrupt activities of other public servants. The public interest is better served if maladministration and corruption are exposed.

b. Secret Acts

In most common wealth countries the state has criminal laws prohibiting the release of military and state laws by officials and outsiders. e.g. Pakistan Officials Secret Acts, 1923 makes illegal the disclosure of any information that has been entrusted to him by confidence by any person holding office or to which he has access due the position he holds.

These laws thus generate a significant barrier to anti corruption efforts and genrally prohibit disclosure of information without permisiion. In Malaysia, the opposition leader Mohd Ezan Mohd Noor was prosecuted in 2000 under the OSA for releasing police reports of corruption by high level government officials. In London, a whistle blower who revealed that the London police force had released incorrect statements regarding the shooting of an innocent man was also arrested. These laws are also used in political cases.

c. Libel

In many countries, defamation and libel laws are used to deter the whistle blowers. Power figures and senior officials use their power to threaten the whistle blowers as they can use the court systems to their advantage. In Singapore, National Kidney Foundation suppressed the whistle blowers from revealing wastage of money on first class tickets, excessive salaries etc by using defamation laws and forced apologies. Finally when a major media company refused to bow down, the story was fully disclosed.

d. Other Laws

There also exists a possibility of criminal or civil charges under laws such as trade secrets or theft. In some countries companies also require that workers sign confidentiality clauses. In Australia, an American who doubted the safety of the new Airbus 380 is facing criminal and civil charges by his ex employer after going public with the potential design flaws.

3. Cultural Barriers

There are at times significant cultural barriers to whistle blowers which see whistle blowers as ‘dobbers’, ‘sneaks’ or ‘narks’. Some of this comes from the abuses to informants historically. In Nazi occupied regimes, the Soviet Union, Aparthied- era South Africa, informants and anonymous denunciations were often used for maintain power.

The organization culture is also equally important. The disclosure of information to outsiders can feel like a betrayal and hence whistle blowers often feel social sanctions for their disclosures. At times, even though formal laws are absent, being shunned or being side lined in the organization can place certain amount of pressure on individuals.

Whistleblowers Laws and Protection Initiatives

All the countries do not have a legal protection act for the whistleblowers. Legal protection for whistleblowers mostly differs on the basis of the country, state in which malpractice occurred and also the subject matter of whistleblowing. The first law that protected whistle blowers was the US Lloyd-La Follette Act of 1912. It guaranteed the right of federal employees to furnish information to Congress. According to the Act, the causes that encourage the efficiency in the service are defined as the just causes. It goes on to say that “the right of employees… to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.”

The U.S. Whistleblowers Protect Act of 1989 (amended in 1994) was established to protect public interest disclosures which were made by federal employees. For aiding whistleblowers in the investigation and to prevent retaliatory action against them, an Office of Special Counsel (OSC) was created. But it was not very successful because of a series of hostile judicial rulings which undercut the protection that was afforded by the Act. A similar or even stronger legislation has been passed by more than 40 states in respect of State employees.

The U.S. Congress passed the Sarbanes-Oxley Act of 2002 in the aftermath of the debacle of Enron and WorldCom which provided for granting sweeping legal protection for whistleblowers in publicly traded companies. Any retaliation against a corporate whistleblower can now lead to imprisonment for up to 10 years. The Department of Labour (DoL) must complete its adjudication of cases relating to whistleblowers within 180 days. If not then whistleblower has following options – he may opt to remain with DoL or ask for ade novotrial in court. Following are the remedies – reinstatement, damages for compensation, pay back with interest, fees for attorney, special damages and costs.

The U.K.’s Public Interest Disclosure Act of 1998 is a one of its kind piece of legislation in the sense that it provides protection to employees in the public, private and non-profit sectors, which includes those working outside the U.K. It provides a framework of legal protection for individuals who disclose information so as to expose malpractice and matters of similar concern. It protects whistleblowers from persecution and dismissal. Under the law, employment tribunals have power to `freeze’ a dismissal and make unlimited compensation awards.

The U.K. example has been followed by South Africa to provide protection to employees of all organisations through its Protected Disclosures Act of 2000.

Other countries like Australia, South Korea, Canada, Argentina, Slovakia, Russia, Mexico and Nigeria have enacted or are in the process to enact whistleblowers protection legislation (but only to government employees).

United Nations Convention against Corruption (2005)

The most significant international instrument on whistleblowing is the United Nations Convention Against Corruption. Work on the Convention began in December 2000 and the final version was approved by the General Assembly in October 2003. It was adopted in December 2005 after it was ratified by 30 countries. As of now, it has been signed by 140 countries and ratified by 47.

Article 32 on the “Protection of witness, experts and victims” provides for protections of witnesses and experts and their relatives from retaliation including limits on disclosure of their identities. More fundamentally, Article 33 on “Protection of reporting persons” envisions countries adopting protections for reporting of corruption by any person.

The UN Office on Drugs and Crime’s “Anti-Corruption Toolkit” notes that Article 3 is advancement on previous agreements such as the 2000 Convention against Transnational Organized Crime which only protects witnesses and experts. The Toolkit extensively covers whistleblowing and recommends legal and administrative measures for reporting and protection including compensation, creation of ombudsman institutions to receive complaints, the creation of hotlines, and limits on libel and confidentiality agreements.

To date, only a few of the countries that have ratified the treaty have adopted comprehensive whistleblower laws and another dozen have adopted limited provisions.

UN Special Rapporteur on Freedom of Opinion and Expression

The Un Special Rapporteur has also recognized that whistleblowing is an important aspect of freedom of expression. In 2000, Abid Hussain criticized the use of state security and other laws against individuals disclosing information in the public interest. In December 2004, UN Rapporteus Ambeyi Ligabo joined with the Special Representatives on freedom of expression and the media from the OAS and OSCE in a statement on free expression calling for national governments to adopt better protections

“Whistleblowers” releasing information on violations of the law, on wrongdoing by public bodies, on a serious threat to health, safety or the environment, or on a breach of human rights or humanitarian law should be protected against legal, administrative or employed-related sanctions if they act in “good faith”.

Protecting Whistleblowers in India

There are no legislations in India to protect whistleblowers here. There have increasingly been the cases of corporate or political scams and which have cost taxpayers heavily including the banks and investors to the amount of thousands of crores of rupees.

A Whistleblowers Protection Act is more important for India than it was for the U.S. and the U.K. It can be a strong tool for ensuring good governance in the country if worked in congruence with the Freedom of Information Act. At this moment we are in dire need of public interest groups like the ones on the lines of Government Accountability Project and the National Whistleblower Centre in the U.S., and the Public Concern At Work in the U.K. These will help in safeguarding the rights of whistleblowers rights and defend the employees against any retaliation.

In the act of protecting whistleblowers, we are maybe unknowingly also protecting ourselves. In the case of legal protection also many employees might feel hesitant to, but the very existence of whistleblowers will discourage government and corporate wrongdoings to a considerable event.

Based on the experiences of other countries the following set of general principles could usefully be the guidelines for the effective Indian legislation regarding the subject:

• With the consent of the State governments, Parliament should try and enact a single Act for all employees who work in any tier of government. This shall also include employees working in any organisation be it the private or voluntary sector. It shall also include employees of contractors, sub-contractors and agents of an organisation; former employees and overseas employees; applicants for employment, auditors and attorneys should also be covered.
• The Official Secrets Act should be outlawed. This will provide for a public interest defence. Also the `gagging clauses’ in severance or employment contracts should be nullified for public interest disclosures.
• It makes no sense to ask if the Act’s protection should include members of such organizations as the armed forces, the police and the secret services. But it must be made sure of that the disclosures shall not harm operations or endanger the lives of the concerned personnel. Unless the Contempt of Courts Act is first amended to provide for a public interest defence, the judiciary shall remain outside its purview.
• The whistleblower’s information about a malpractice must be substantially true, and consequently the whistleblower must act in the good faith and true spirit. In the case of the calls that are not legitimate or are anonymous the whistleblower should not be provided protection with. The period given to file a complaint must be such long so as to provide him sufficient time (say, 1 year).
• There should be a clear definition of what constitutes public interest disclosures. Following can be the disclosures to which protection can be provided – illegal or criminal act(s), breach of regulatory law, miscarriage of justice, danger to public health or safety or property and any damage to environment, including attempts which are intended to cover up these malpractices.
• The Act must be constituted in such a way so as to encourage employees to first raise the matter within the organization and mandate organisations to establish proper mechanisms for this purpose. When it is not reasonable to raise the matter within the organization, or where attempts to solve the matter from within have been unsuccessful, employees who make an external disclosure in a specified way should also be protected. It remain a matter of debate that what should be the specified way. By general wisdom, apart from certain designated offices which may include SEBI, Pollution Control Boards, etc., public interest disclosures to such personalities as MPs and MLAs; employee unions; and reputed public interest groups must be protected. Disclosures made to the media may also be protected in some cases but in such a case the whistleblower must carry the burden of proof. The protection should include any and all forms of retaliation and the possible solutions could be on the same lines as in the Sarbanes-Oxley Act, including criminal liability for retaliation.
• To carry out timely adjudication of cases there should be a fast track mechanism similar to that of the Sarbanes-Oxley Act. Decisions have to be made on the points that whether the existing Administrative and other tribunals should be strengthened to do the job or new agencies should be created.

Some Famous Cases of Whistleblowing

• Sherron Watkins, an accountant in Enron blew the whistle for the company. She raised “suspicions of accounting improprieties” to Enron Chairman, Kenneth Lay. She also warned about Jeffrey Skilling (Chief Executive Oficeer), Fastow (Chief Financial Officer) and other executives who were duping the company. The Chairman just asked an outside law firm, to investigate about it. Before Enron finally declared bankruptcy, Watkins once again informed the chairman that the financial partnerships set up by the huge Houston energy company would prove disastrous and potentially destroy Enron.
• Coleen Rowley, a special agent with FBI, initially served in the Omaha, Nebraska and Jackson, Mississippi Divisions. After the 2001 attacks, Rowley wrote a paper to FBI Director, Robert Mueller, explaining that the FBI HQ personnel in Washington DC had ignored the warnings given by Minneapolis, Minnesota Field Office. In May of 2002, Rowley brought some of the pre 9-11 lapses to light and testified to the Senate Judiciary Committee about some of the endemic problems faced by FBI and the intelligence community. As a result, the FBI cleared a new Office of Intelligence and expanded the FBI personnel.
• Frank Serpico is yet another whistleblower. He joined the New York Police Department (NYPD) as a Probationary Officer in the year 1959. In 1967, Frank made his first formal report about the “widespread, systematic police corruption”, but the police department failed to do anything about it. He gave a complaint to the police Commissioner and the Mayor, but they ignored him. Frustrated, Serpico exposed the NYPD wrongdoings in The New York Times in 1971. Later, he was shot in the face during a raid. None of his colleagues came to help him. Later, Frank was promoted to the rank of detective and was given a gold shield. In May 1972, Frank was awarded the NYPD’s Medal of Honor for his honesty and bravery in fighting corruption. Serpico quit NYPD in 1972.
• Jeffrey Wignand, Vice-President for tobacco research and development at Brown & Williamson became the whistleblower on Bg Tobacco, telling how the industry minimized tobacco’s health and safety issues. In a 1995 CBS news interview, “60 minutes”, he went on speaking about the company’s knowledge of nicotine’s addictive properties, its reckless use of harmless additives, its quashing of research on safe cigarettes, and a variety of other abuses. He was the center witness in the US government’s lawsuit against the tobacco industry, which eventually led to the $246bn federal tobacco settlement. Later, Wignand formed a non-profit organization to educate children about health issues and reduce the usage of tobacco among teenagers.

Examples of Whistle blowing from India

Satyendra Dubey

Talk of whistle blowing in the Indian context and one of the first cases that comes to the mind is that of NHAI engineer Satyendra Dubey. Satyendra Dubey, was one of those rare young men who was completely and uncomplicatedly honest. An engineer from Indian Institute of Technology, Kanpur and working for National Highway Authority of India, Satyendra Dubey was supervising construction of the Prime Minister’s dream project in the Koderma division in Jharkhand as a part of the Golden Quadrilateral project. In August 2003 he was transferred to Gaya. At Gaya, he exposed large-scale flouting of NHAI rules regarding sub-contracting and quality control. Meanwhile, faced with the possibility of high-level corruption within the NHAI, Dubey wrote directly to the Prime Minister, Atal Bihari Vajpayee, detailing the financial and contractual irregularities in the project. Despite a direct request that his identity be kept secret and despite the letter’s sensitive content, accusing some of Dubey’s superiors, the letter along with bio-data was forwarded immediately to the Ministry of Road Transport and Highways. Dubey faced several threats following this. On November 27, 2003, Dubey was found shot dead in the suburb of A.P. Colony in Gaya while he was returning from a wedding from Varanasi.

Satyendra Dubey’s death sparked off widespread public protest and highlighted the need and urgency of a whistleblowing act. It exposed the high levels of unethical practices being practiced in the uppermost echelons of the ministries and the unholy nexus with the mafia.

Shanmugam Manjunath

Another glaring example of the apathy faced by the whistle blowers in India is that of the Indian Oil engineer Shanmugam Manjunath. Manjunath was a marketing manager for the Indian Oil Corporation (IOC) who was murdered for blewing the whistle on a scheme to sell impure gasoline. An MBA from Indian Institute of Management, Lucknow, Manjunath worked for IOC in Lucknow. While there, he had ordered two petrol pumps at Lakhimpur Kheri to be sealed for selling adulterated fuel for three months. On November 19, 2005, Manjunath was found dead in the backseat of his own car, his body riddled with at least six bullets.

M N Vijaykumar

M N Vijaykumar is an IAS officer in the southern state of Karnataka. He has a penchant for disciplining colleagues who supplement their modest salaries with bribes, kickbacks and garden-variety pilferage. He exposed serious corrupt practices at high levels. His wife, J N Jayashree, set up a website detailing her husband’s efforts to fight corruption, and to safeguard her husband’s life.

Other Examples of Whistle blowing from Asia

• Yoichi Mizutani blew the whistle on a scam by Snow Brand Food Co. in 2002 while working as the president of a Japanese storage company named Nishinomiya Reizo. Snow had been mislabelling Australian beef as domestic beef so that it could benefit from the beef buy-back program of the government which was issued after an outbreak of bovine spongiform encephalopathy (mad cow disease) in Japan. Mizutani’s reward was an order from the Construction & Transport Ministry company to suspend operations – a suspension that lasted 16 months – during investigation of the scam. Nishinomiya was eventually cleared of participation in Snow’s scheme.
• Myron A. Mehlman was the former director of toxicology and manager of Mobil Oil’s Environmental Health and Science Laboratories. He claimed that Mobil incorrectly reported results of his toxicological testing of Mobil products to company officials and outside agencies. Mehlman held his position from 1978 until he was fired in 1989. He supervised about 100 employees in conducting tests and safety evaluations of Mobil’s petrochemical products, including gasoline. Mehlman had warned that the true benzene levels in gasoline and other Mobil products posed a serious hazard to the public health and environment and that they should be reduced and that Mobil products should be modified. After his firing, Mehlman successfully sued Mobil charging that the company systematically covered up environmental and human health problems.
• Sibel Deniz Edmonds is a Turkish-American. She had worked as a FBI translator and founder of the National Security Whistleblowers Coalition (NSWBC). In March, 2002, she had accused a colleague of covering up illicit activity involving foreign nationals and also alleged that there were serious acts of security breaches, cover-ups, and intentional blocking of intelligence which according to her were a danger to the United States’ security. Following this she was fired from her position as a specialist of language at the FBI’s Washington Field Office. Since that time, court proceedings on her whistleblower claims have been blocked by the assertion of State Secrets Privilege. On March 29, 2006, she was awarded the PEN/Newman’s Own First Amendment Award in recognition of her defense of free speech as it applies to the written word.
• Marlene Garcia-Esperat (August 29, 1959 – March 24, 2005 in Tacurong City, Sultan Kudarat, Philippines) was a Filipina whistleblower and investigative journalist who wrote a weekly anti-graft column for local newspapers. As a result of her anti-corruption work, she was murdered in her own home. Her case is significant, as it is the first in the 56 murders of Filipino journalists since 1986 for which the people ultimately responsible were identified, in addition to the people directly involved. Esperat, as former employee of the Department of Agriculture in Central Mindanao (DA-12) and Midland Review, Tacurong City columnist, exposed the alleged Jocelyn “Jocjoc” Bolante fertilizer funds scam, in which President Gloria Macapagal-Arroyo was implicated.
• Dr. Ramin Pourandarjani (9 June 1983 – 10 November 2009) was an Iranian physician who examined prisoners who were wounded or killed during the 2009 Iranian elections protests. He had reported on the state use of tortureon political prisoners. He died under suspicious circumstances on November 10, 2009, at the age of 26. Tehran’s public prosecutor Abbas Dowlatabadi said Ramin Pourandarjani died of poisoning from a delivery salad laced with an overdose of blood pressure medication. The findings fueled opposition fears that he was killed because of what he knew. Pourandarjani had worked as a physician at the Kahrizak detention center. Iranian authorities earlier had claimed at various points that Pourandarjani had been injured in a car accident, committed suicide, or died of a heart attack in his sleep at the health center at the police headquarters in Tehran where he worked.

The Future of Whistleblowing

The following are some of the principles for whistleblowing legislation based on international best practice that should be considered when developing new legislation. The work of the OAS Working Group is also a valuable resource including the Model Law on whistleblowing developed a few years ago:

Broad Coverage

The law should have a broad coverage. It should apply to public and private sector employees and also those who may face retribution outside the employer-employee relationship such as consultants, former employees, temporary workers, students, benefit seekers, family members and others. It should also apply to national security cases.

Protection against retribution

The law should have a broad definition of retribution that covers all types of job sanctions, harassment, loss of status or benefits, and other detriments. Employees should be also to seek interim relief to return to the job while the case is pending or be allowed to seek transfers to other equivalent jobs within the organization if return to the existing one is not advisable due to possible retribution.

Protection of free speech

The law should recognize that there is a significant importance in free speech whistleblowing. Public interest and harm tests should be applied to each release of any information that could have been released under FOI cannot be sanctioned.

Confidentiality

The law should allow for whistleblowers to request that their identity should remain confidential as far as possible. However, the body should make the person aware of the problems with confidentiality and also make clear that the protection is not absolute.

Waiver of liability

Any act of public disclosure should be made immune for liability under other acts such as Official Secrets and libel/slander laws. An even more significant move would be to eliminate archaic Official Secrets Acts such as already has been done in New Zealand.

Compensation

Compensation should be broadly defined to cover all losses and place the person back at their previous situation. This should include any loss of earnings and further earnings. This loss should not be capped. There should also be provisions to pay for pain and suffering incurred because of the release and any retaliation.

Rewards

In some cases, whistleblowers should be rewarded for making disclosures that result in important recovery of funds or discoveries of wrongdoing. Qui Tam cases, such as have been used in the US, may be an appropriate mechanism for recoveries.

Disclosure Procedures

The law should set up reasonable procedures to encourage and facilitate internal procedures to disclosure wrongdoing. However, the procedures should be straightforward and easily allow for disclose outside organizations to higher bodies, legislators and the media in cases where it is likely that the internal procedure would be ineffective. There should be easy access to legal advice to facilitate disclosures and reduce misunderstandings.

No sanctions for misguided or false reporting

The law should not allow for criminal sanctions against whistle blowers who make false disclosures. The disclosure might have been made in good faith. In case of delibarate falsehood, normal sanctions such as a loss of job should be sufficient.

Extensive training and publication

The