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Protection to whistle-blowers - to check state corruption

By Nagananda Kodituwakku
[The writer is the former head of the revenue fraud Investigations [Revenue Task Force - Sri Lanka Customs], and now a solicitor practicing in the UK]

Last Sunday the Sunday Times highlighted a proposal by the Public Accounts Committee (PAC) that the Ministry of Finance should encourage "whistle-blowing" practices found in other countries that help to expose corruption and malpractices in state institutions. The PSC proposes the enactment of a public interest disclosure act to enable and encourage public sector employees to expose corruption and malpractices in the public sector with a guarantee of absolute confidentiality and protection from any possible victimisation.

This is a very important proposal in the right direction and the following exposure is for the benefit of those who are interested in the legal protection given to whistleblowers in the leading democracies.
In the United Kingdom, the Public Interest Disclosure Act 1998, provides legal protection to workers who are victimised by employers for "blowing the whistle" about wrongdoing at work.

Described as the most far-reaching "whistle-blowing" legislation in the world, it provides clear protection to officials who are dismissed or subjected to detriment for making certain disclosures i.e. a disclosure of information which, in the reasonable belief of the worker making the disclosure, concerns criminal offences, breaches of legal obligation, miscarriages of justice, health and safety dangers; environmental risk; or any "cover-ups" relating to these matters.

Under this law, legal protection is also provided to disclosures to the media as well, but only where the matter is exceptionally serious and was not raised in the workplace because of fear of victimisation or cover-up, or where the matter was pursued internally or with a prescribed body but not dealt with properly.

It further provides, where a worker has made a protected disclosure and is either dismissed or subjected to any other detriment or persecution as a result of the disclosure, any such action is treated unlawful and the worker may seek redress including damages from an employment tribunal. Dismissal is regarded as automatically unfair if the reason for dismissal or selection for redundancy is because the employee made a protected disclosure. There is no limit on compensatory awards in cases of such dismissal.

Another important feature of this peace of legislation is that any term or condition in a worker's contract, which purports to prevent the worker from making a protected disclosure, is treated void. The British government believes that this legislation can help ensure that potential disasters are averted and prevent colossal financial losses.

Some time back, the government [Sri Lanka] acknowledged that at least five Customs officers had left the country in fear of their lives. In fact, they left because they refused to give into the political pressure brought upon them by powerful politicos to drop major revenue fraud investigations ran into hundreds of millions of rupees. These officers exposed the government wrongdoing through media and after their departure the Ministry of Finance banned the other officers from speaking to the media about the tragedy.

Action by the Ministry is considered shortsighted, in a setting where upright revenue officers who dare to expose government corruption are targeted and eliminated with the connivance of powerful fraudster-politico-cheats. It is sad that the government has failed to realise that those officers who had left the country would have done so had the government taken the right measures to secure their protection. In these circumstances the initiative and the proposal by the PAC to protect the whistleblowers is timely and appropriate action.

[The writer is the former head of the revenue fraud Investigations [Revenue Task Force - Sri Lanka Customs], and now a solicitor practicing in the UK]


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