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Whistleblower protected for disclosure of improper conduct

LETTERS: I refer to 'Company deputy director charged with sacking whistleblower who exposed him', dated September 18, 2020, where a senior official at Education Malaysia Global Services was charged under the Whistleblower Protection Act 2010 for taking action against an employee who exposed his improper conduct to the Malaysian Anti-Corruption Commission (MACC).

This is the first time a person was charged pursuant to the Act, since it was enforced in 2010. Such a person is protected by the Whistleblower Protection Act against any detrimental actions or reprisals.

To avail protection under the Act, the reporting of the improper conduct must be made to the designated enforcement agencies - the Royal Malaysian Police Force, Royal Malaysian Customs Department, Immigration Department of Malaysia, MACC, Malaysian Securities Commission, Companies Commission of Malaysia and the Road Transport Department.

A whistleblower will be accorded protection such as the confidentiality of the information, immunity from civil and criminal action and protection against retaliatory actions or reprisals.

In the course of investigation, the person who received the disclosure of the improper conduct shall not disclose the information nor can he be ordered or required to disclose the information in any civil, criminal or other proceedings in any court, tribunal or other authority.

The purpose of imposing a confidentiality obligation on the recipient of protected information is to protect the whistleblower against litigation and against reprisals or threat of reprisal. Any violation of the above is an offence and shall, on conviction, be liable to a fine not exceeding RM50,000 or to imprisonment not exceeding ten years or to both.

Further, a whistleblower shall not be subject to any liability arising by way of administrative process, including disciplinary action, and no action, claim or demand may be taken or made against the whistleblower for making a disclosure of the improper conduct.

The immunity would not be available if it can be shown that the whistleblower acted with malice, in bad faith or made a false report. The Act also provides that no person shall take detrimental action against a whistleblower or any person related to or associated with the whistleblower.

The protection against detrimental action includes action causing injury, loss or damage, intimidation or harassment, interference with the lawful employment or livelihood of any person, including discrimination, discharge, demotion, suspension, disadvantage, termination or adverse treatment in relation to a person's employment, career, profession, trade or business or the taking of disciplinary action or even a threat of such action.

Any person who contravenes the above commits an offence and shall, on conviction, be liable to a fine not exceeding RM100,000 or imprisonment for a term not exceeding 15 years or both. When any detrimental action is taken by any person against the whistleblower or any person related to or associated with the whistleblower, a complaint to that effect may be lodged with any of the earlier mentioned enforcement agencies.

In short, the Act encourages and facilitates the anonymous whistleblowing of improper conduct in the public and private sector and to accord protection to the whistleblower against any retaliatory action or reprisal. Without the protection, a person who has knowledge of the improper conduct in an organisation may be discouraged from blowing the whistle.

Hence, the criminal charge against the deputy director under the Act would serve as a lesson to others who attempt to punish the whistleblower for the disclosure of improper conduct.

DR ASHGAR ALI ALI MOHAMED

International Islamic University Malaysia


The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times

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