How To Improve Whistleblower Protection in Malaysia

Malaysia’s poor reputation on corruption took a serious hit with the 2015 scandal concerning the 1Malaysia Development Board (1MDB), and things have not improved much since then. If the Malaysian government is serious about cleaning up the country, and improving its international reputation, it needs to do more than just hold accountable those responsible for 1MDB and other scandals. Looking forward, Malaysia must also improve its legal framework for the detection and prevention of corruption. In this regard, as leading anticorruption advocacy organizations have emphasized, stronger whistleblower protection is essential. Most forms of corruption are hard for outsiders to detect, and those with first-hand knowledge of possible wrongdoing will be reluctant to report what they know unless they have, at a bare minimum, sufficient protections against retaliation.

Malaysia does already have a dedicated whistleblower statute, the Whistleblower Protection Act 2010 (WPA2010). But while the existence of this law is a good first step, its provisions are not satisfactory. Even the government has acknowledged this: Noting the gaps and weakness of the current statute, the Minister for Parliament and Law recently placed the question of amending the WPA2010 on Parliament’s agenda. As Parliament takes up this vital question, the following improvements to the law should be high priorities:

  • First, the law should be amended to expand the list of bodies that can receive protected disclosures. Under the current version of the WPA2010, only disclosures that are made to “enforcement agencies” are protected under the Act. “Enforcement agencies” are defined as government and statutory bodies with investigative and enforcement functions, including most notably the Royal Malaysian Police and the Malaysian Anti-Corruption Commission (MACC). By contrast, disclosures to disciplinary bodies like the Medical Council and Bar Council are not protected, nor are disclosures made to lawyers. At first it might appear sensible to limit protections to those who disclose to enforcement agencies. Unfortunately, in Malaysia the principal enforcement agencies—the police and MACC—are often perceived to be ineffective in investigations (see here and here), or even internally corrupt. Other jurisdictions provide a model that Malaysia can follow by extending protections to those who disclose to a wider range of bodies. For example, Australia protects disclosures to professional disciplinary bodies and legal practitioners. Expanding the WPA2010 in a similar manner would encourage more whistleblowing in Malaysia, where disciplinary bodies and lawyers do not suffer from the same perception of ineffectiveness and internal corruption, and they have more independence from the government.
  • Second, the coverage of the Act should also be expanded to whistleblowers who disclose information to journalists and civil society organizations (CSOs) under some circumstances. There are legitimate concerns about extending such protections to disclosures to the press or activists. But the right way to handle this issue, again using Australia as a model, is to extend whistleblower protections to disclosures to the press or CSOs when, but only when, the whistleblower already reported through official channels yet no action was taken within a reasonable period of time. Extending protections to those who report to the press or CSOs when the government fails to take action would restore Malaysians’ sense of ownership over anticorruption efforts, and would also be an effective safeguard in cases where the government is itself alleged to be complicit in the improper conduct under investigation.
  • Third, those government bodies authorized to receive whistleblower complaints should be required to have a dedicated department—preferably headed by a dedicated officer—to receive disclosures. This department should have sufficient guarantees of independence. This requirement is especially important when the improper conduct is alleged to have taken place in the very agency to which the disclosure is made. Besides investigating complaints, these dedicated departments and officers should also have a duty to explain to whistleblowers their rights under WPA2010 (such as their immunity from civil and criminal liability). The Enforcement Agency Integrity Commission (EAIC), which has supervisory jurisdiction over certain other enforcement agencies (such as the Royal Malaysian Police, Department of Environment, the Department of Occupational Safety & Health, and the Labour Department), should also be empowered and required to establish a mechanism for whistleblowers to come forward with disclosures concerning other enforcement agencies, thus performing a role similar to that of the Ombudsmen in the UK, receiving and addressing complaints concerning government agencies.

Corruption can only be addressed effectively when individuals who come across improper conduct are encouraged to blow the whistle. They will only do so if there are channels open to them that they believe to be effective and independent, which will keep their identities anonymous and support them against retaliation. By strengthening WPA2010, Malaysia would be taking steps that will redeem it from its enduring mire of corruption. The time to fix the law is now.

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