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Published: 12:15 AM, 01 September 2019

https://dailyasianage.com/news/193448/whistleblowers-law-to-fight-corruption

Whistleblowers' law to fight corruption M S Siddiqui

Corruption is detrimental to business and welfare of the poor. It discourages many investors and entrepreneurs from taking calculated risks. It creates uncertainties in the business environment that reduces the overall competitiveness of doing business. In many poor countries, where corruption situation has worsened over the years, doing business is not an attractive proposition. This is because corruption does not allow many businesses to operate at their fullest potential for profitability and growth. As a consequence, corruption reduces the ability of the private sector to create new jobs and sustain existing ones. Unfortunately due to prevalence of corruption, the cost of doing business in Bangladesh is high. The prevailing corruption discourages business and investments, and poses as a major obstacle to economic growth. Corruption increases the cost of government and social services and reduces societal and individual welfare. In addition, corruption distorts access to essential public services, especially by the poor. The state should have a framework of fighting or reducing corruption by integrating individuals in the anti-corruption campaign and action. Many people are unwilling to raise their voice against corruption in individual capacity; many individuals would see no clear personal benefit from the risky act of challenging corruption. On the other hand, many do not talk or take action against corruption without adequate protection and support. A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities and misconduct occurring in a government department, a public or private organization. Whistleblowers disclose corruption or wrong-doing by responsible persons. The state must provide attractive incentives to them. The state should strengthen the legal, financial, and organizational protection and support to them. The idea is to provide a system of social support that will shield whistleblowers from any losses in personal benefit and comfort. Information concerning abuses of public power for personal gain is a common subject of a protected disclosure. Some definitions of protected disclosures focus on uncovering corruption. For example, in South Korea's Anti-Corruption Act of 2001, the main purpose of defining a protected disclosure is to uncover corrupt activities in the public sector. Thus, in the absence of an effective legal framework, many people will avoid acting against corruption if there are no attractive individual incentives for doing it.

Whistleblowers are sometimes able to come forward to report cases of corruption, graft, abuse of power or abuse of resources but they are most often punished either through official or unofficial means. As such, whistleblowing promises to bolster anti-corruption initiatives. The whistleblower participates in the task of detection and communication of the existence, or probable existence, of illegal or undesirable activities. The whistleblower may be a public official exercising his function or private individual. In the past few decades, the world has seen growing support to international agreements to fight corruption. Evidence of this support can be found in the United Nations Convention against Corruption (UNCAC). Bangladesh acceded to the UNCAC in February 2007 and is pledge-bound to reform certain laws and frame some more laws to curb corruption and promote good governance. The UN recognizes the need for protecting whistleblowers in the campaign to eradicate corruption. In Article 33 of the UNCAC, the UN encourages signatory countries to incorporate into their domestic legal systems measures to protect whistleblowers and witnesses from any unjustified treatment. The Organization for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transaction explicitly encourages external auditors to report bribery. It mandates member countries to require an external auditor who discovers acts or indications of bribery to report to the management, corporate monitoring bodies, and to competent authorities. Whistleblowing may promote an individual's accountability and prevent the breakdown in principal-agent relations that happens when a corrupt act is committed. The potential of whistleblowing to remedy corruption is slowly gaining recognition and support in the public and private sectors. In the Philippines Congress, measures have been proposed to encourage whistleblowing. Generally, these bills suggest that the exposure of wrongdoing in government will deter corruption, and therefore, should be encouraged by instituting measures that will protect whistleblowers from reprisal and harassment. Whistle blowing is also viewed as a form of "ethical informing", which is motivated by the desire to protect and promote the public interest. The "disclosure of organizational wrongdoing to protect the public interest" is the "finest manifestation" of whistleblowing. The Office of the Ombudsman, the constitutional body tasked with reducing corruption, primarily uses punitive and retributive measures to fight corruption in its anti-corruption strategy. It also favours the use of aggressive imposition of administrative sanctions, speedy investigation and prosecution of graft cases, and responsive public assistance as instruments to fight corruption. Unfortunately, Bangladesh has an Ombudsman law butthe government has so far failed to establish the office of Ombudsman. The Anti-Corruption Commission (ACC) is empowered to investigate allegation of corruption but it cannot indict government officials without approval from relevant authorities. ACC may inquire into any allegation of corruption, investigate or file cases on its own initiative, or upon application filed by anyone, including a whistleblower. Law-enforcement agencies also do the same.

The Bangladesh Bank investigates financial crimes like money laundering etc. The National Board of Revenue (NBR) can investigate tax evasion. Comptroller and Auditor General's (CAG) office and ministries or departments concerned can take initiatives against corruption. Government officials can report corruption to higher authorities. Bangladesh has been a party to the UNCAC. Being a state party of the convention, it is mandatory for Bangladesh to introduce legislation to ensure protection of whistleblowers. The Public Interest-Related Information Disclosure (Protection) Act, 2010 empowers a person to disclose information on ministries, divisions, departments or any other government offices, and all kinds of non-government organisations to authorities concerned. No criminal or civil or departmental proceedings can be initiated against a reporting person for disclosing public interest-related information to the authorities, and his identity will not be disclosed without consent. If the whistleblower is a government official, no action can be taken to punish him, send him on forced retirement, or take any departmental action to harass him, which may damage his social dignity or cause torment. A whistleblower cannot even be made a witness and produced before the court in connection with the criminal and civil cases to be filed following the information disclosed. The information cannot be produced before court as evidence to keep the person's identity secret, according to the provisions of the Public Interest-Related Information Disclosure (Protection) Act, 2010. As an exercise of responsible citizenship, whistleblowing against corruption can help create a new societal and organisational culture that emphasises integrity and honesty in the workplace. As a courageous act, whistleblowing against corruption can create inspiring stories that may, in the long run, reduce people's tolerance for questionable practices of doing business and public service. Government, business and civil society organizations need to explore the potential of whistleblowing as an instrument for detecting corrupt activities. They need to explore whistlebowing's potential for making corruption a high-risk activity. Through well-designed and vigorously implemented policies and programmes on whistleblowing, they can create a chilling effect on corrupt individuals who continue to perpetrate corrupt activities to the detriment of the public interest. Moreover, the government, private sector enterprises and civil society could give an attractive form of incentives to encourage whistleblowing against corruption. A rule prescribing procedures for disclosures of wrongdoing may be issued and publicized to all citizens specifying the entities for receiving and acting on disclosures. The regulators like ACC, Ombudsman and other agencies may encourage whistle blowing by establishing support structures and programs for policy implementation and penalizing violations of the rights and obligations of parties to whistleblowing. Bangladesh has passed "The Public Interest-Related Information Disclosure (Protection) Act, 2010" but has hardly used it to fight against corruption. The law is kept in the safe custody of the administration and used in compliance reports to UN only. This is not a secret document. A mere publicity of the existence of the law can create an unfavorable atmosphere for the corrupt persons and encourage the whistleblowers to blow a whistle in case of corruption.

The writer is a legal economist. Email: mssiddiqui2035@gmail.com