Laws For The Protection Of Whistleblowers In Pakistan

Laws For The Protection Of Whistleblowers In Pakistan (With Origins and Brief History)

The Provincial Assembly of Khyber Pakhtunkhwa enacted a landmark law in September this year. It unanimously passed The Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act 2016 on Sep 19, 2016. The Khyber Pakhtunkhwa government was the first among the provinces in the country to legislate on such an important matter. Even the federal government has yet to take steps in this regard.

Who is a whistleblower?

“A whistleblower is a person who exposes information that he or she believes is harmful to the public at large.”

A whistleblower reports the wrongdoings committed by the worker of an organization, whether in public or private. There are certain acts that come in the domain of wrongdoings. The act committed must be relevant to the interests of public at large. It must affect the general public. A whistleblower is protected by law in different countries. Most of the time he or she gets rewarded for blowing the whistle.

Definitions according to different sources

There is no common legal definition for what constitutes whistleblowing.

The International Labor Organization (ILO) defines it as “the reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers.”

The United Nations Convention against Corruption (UNCAC) refers to it as “any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.”

The Council of Europe Civil Law Convention on Corruption refers to it as “employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities.”

Wrongs that come under the umbrella of whistleblowing

• A violation of any law, rule, or regulation;
• Gross mismanagement;
• Misuse of funds;
• Misuse of office/power for personal interests;
• Risk or actual damage to the environment;
• Any act which is harmful to public health and tranquility.

Origins of whistleblowing

Whistleblowing dates back to time immemorial. An early noted incident in old texts is from the Ramayana where Vibhishan, the younger brother of King of Lanka, Ravana, informed Ram about the whereabouts of Sita, the consort of Ram. On the other hand the first reported case of whistleblowing in American history took place before the ratification of the American Constitution. A libel suit was filed by two naval officers, Shaw and Marven, against their commander, Esek Hopkins. Shaw and Marven complained about the torture of British war prisoners at the hands of Hopkins. Consequently, both were dismissed from their duties. The events related to this case led the Continental Congress to enact a whistleblower protection law on July 30, 1778. The law made it incumbent upon all the people in service of the United States to tell the authorities when they witness any misconduct.

Coining of the term ‘whistleblowing’

An American named Ralph Nader coined the term ‘whistleblower’ in the 1970s. He explained that whistleblowing was the same phenomenon as a referee blowing the whistle in a game. He further explained that whistleblowers put themselves, their jobs, family and life at risk for the sake of others, so they must not be considered informers with mala fide intentions.

Moreover, in America the Whistleblower Protection Act was enacted in 1989.

Whistleblowing in contemporary times

The debate of whistleblowing made it to the limelight when Julian Assange (the founder of Wikileaks) and his source Bradley Manning (ex-US army officer) made some revelations. Furthermore, it hit the headlines recently when Edward Snowden (former CIA employee) exposed the global surveillance programs. Similarly, the Watergate scandal was the result of information given by an informant known as Deep Throat, whose identity was later revealed in 2005 as Mark Felt.

Laws on whistleblowing in Pakistan

In Pakistan, there is no specific legislation on whistleblower protection at a federal level. Among the provinces, Khyber Pakhtunkhwa takes the lead. First it gave protection to the whistleblower by incorporating a provision (Section 30) in its Khyber Pakhtunkhwa Right to Information Act 2013. And more recently, it has passed a law known as The Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act 2016.

The federal government and other provinces have not taken any step in this regard. Though each province has passed the Right to Information Act but no provision related to whistleblower protection has been incorporated. In 2013, there was a debate on federal level but no practical steps have been taken to date.

Balochistan, Punjab and Sindh have enacted the Freedom of Information Act (2005), Right to Information Act (2013) and Freedom of Information Act (2005) respectively. However, there is no provision in the Acts which provides for the protection of whistleblowers.

Khyber Pakhtunkhwa whistleblower protection law

A brief overview of the Khyber Pakhtunkhwa whistleblower protection legislation is as follows:

• Khyber Pakhtunkhwa Right to Information Act 2013

The Khyber Pakhtunkhwa provincial government enacted the Khyber Pakhtunkhwa Right to Information Act in 2013. This Act was aimed at curbing malpractices and ensuring transparency in the functioning of government departments. In this law the government had also incorporated a provision regarding whistleblowers.

Section 30 of the 2013 Act states:

30. Whistleblowers —

(1) No one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

(2) For purposes of sub­section (1), wrongdoing includes

• the commission of a criminal offence,
• failure to comply with a legal obligation,
• a miscarriage of justice,
• corruption or dishonesty, or
• Serious maladministration regarding a public body.

• The Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act 2016

The Khyber Pakhtunkhwa Assembly unanimously enacted this law on September 19, 2016.  This Bill was first introduced in the Assembly in October 2015. After debate it was referred to the select committee for consideration on November 17, 2015. It was discussed by the committee and subsequently a revised Bill was drafted and placed before the committee on Aug 30, 2016. The committee examined the Bill in depth and suggested changes to the revised Bill and a final Bill was then presented to the Assembly, which passed it unanimously on September 19, 2016. The Act is known as the Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act 2016. The aim of the law is to set up a Whistleblower Protection and Vigilance Commission (WPVC). This Commission shall encourage citizens of the province to disclose or blow a whistle against corruption and malpractices in their respective departments.

• Definition of whistleblower

According to this Act a whistleblower means ‘a person or an agency, who discloses public interest information.’

• Protection of whistleblower

Section 11 states:

`… No whistleblower is victimized by disadvantageous measures or otherwise merely on the ground that such whistleblower had made a public interest disclosure or rendered assistance in inquiry…’

• Reward for whistleblower

Section 12 of the law says:

‘After inquiry, if it has been proved that a whistleblower has rightly disclosed the
violation of public interest, shall be rewarded 30 percent of the recovered amount and a certificate of appreciation.’

• Mala fide complaint

Section 12, subsection 2 states:

‘after inquiry, if it has been proved that a whistleblower has lodged frivolous or mala fide complaint, he/she shall be liable to a fine of 30 percent of the actual amount claimed against a person with rigorous imprisonment for a period of three years. Provided that the amount of the fine shall be paid to the person against whom the complaint has been made.’

• Whistleblower Protection and Vigilance Commission

The Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission will be established under this law.

• Clause 4 of the law explains the composition of Commission

`…the commission shall consist of three commissioners, including a chair, appointed by the government for a period of three years and shall not be eligible for reappointment for a second term.’

• Clause 5 is related to powers and functions of the Commission

The Commission has the power to conduct proper and transparent inquiry under this Act and make recommendations to the concerned authorities for taking action against individuals or agencies for the violation of public interest under relevant laws.

The Commission shall ensure that no whistleblower is victimized by disadvantageous measures or otherwise merely on the ground that such whistleblower had made a public interest disclosure or rendered assistance in inquiry under this Act.

• Time limit for inquiry

Under Section 5 of the law:

‘The inquiry will be completed within 60 days, while the Commission has to take decision on the inquiry within 30 days.’

• Penalty for non-compliance with the decision of WPVC

According to Section 13 of the said Act:

‘any person, agency or government department that willfully does not comply with the directions of the Commission would be liable to a fine of not less than Rs. 50,000 and not more than Rs. 200,000 and 2 years imprisonment.’

Compiled by Tariq Hameed

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.