Disincentivising whistleblowing

Statistically, the government is approached by an average of seven whistleblowers a year, but it remains unclear how many the authorities consider, what the reports are about, and how many result in investigations or court action. Not only that, but the few high-profile cases we had were surrounded by political controversies that, in the end, did not afford any statutory protection to the whistleblowers concerned.

When Joseph Cauchi accused the husband of Giovanna Debono, a member of parliament and Minister for Gozo until 2013, of misappropriation of public funds, he became the only witness ever granted protection under the Whistleblower Protection Act. The credibility of the evidence he provided as a protected witness was discounted at trial. In that case, the law was abused since it was perverted to serve a politically motivated purpose to persecute an opposition politician.

In 2018, Jonathan Ferris claimed to have come across evidence of corruption reaching the very top of the Maltese government when he worked as an investigator at Malta’s Financial Intelligence Analysis Unit. He was denied any meaningful means of having his case for protection heard at all under the pretext that he failed to act in line with the dispositions of the law.

Around 2017, Maria Efimova applied for protection after the reporter to whom she provided information, Daphne Caruana Galizia, was killed in her own car with a bomb detonator. Both Efimova and Caruana Galizia revealed information on Maltese high-level officials involved in the Panama Papers scandal. No full protection was provided to the whistleblower and her family, and, consequently, she fled to Greece. Apart from receiving threats and being prosecuted in Malta, Efimova continues to bear all the legal costs in the Maltese court. Her case is still ongoing.

And how can we forget how the whistleblower working within Transport Malta was treated by the authorities after spilling the beans on what was going on at Transport Malta when it came to driving licence exams? A pivotal witness was conveniently locked out of Malta in order to prevent him from duly testifying in court.

When considering whistleblowing in Malta, the fact is that while it is comprehensive in terms of legislation, it is ineffective with respect to real cases of whistleblowers asking for protection. The burden of proof is on the whistleblower. He or she must provide evidence of misconduct and prove that whistleblowing is legitimate. In the EU Whistleblowing Directive, the burden of proof is always on the reported person, which significantly simplifies the process of reporting for the whistleblower.

Whistleblowers can get free legal assistance according to the EU Whistleblowing Directive, as well as compensation for moral damage. As long as Malta doesn’t follow the recommendations and protect its whistleblowers, this chance is also lost for Malta’s citizens. The longer Malta ignores whistleblowers’ safety, the more corrupt and unattractive investments will continue to be.

As whistleblowers often have access to information that sometimes cannot be detected by other integrity mechanisms and institutions, they constitute a unique added value to institutional safeguards and can make a vital contribution to the fight against corruption by promoting greater transparency and accountability in the central and local government.

Our legislation has not always been matched with effective measures for the management of whistleblowing or adequate measures to protect individuals who decide to report cases of misconduct or wrongdoing. At the same time, legitimate public concern about the manipulation of public opinion in the media through so-called “fake news”, can make it easier for those accused of misconduct to dismiss those criticisms as being false.

Ministers are failing to put in place effective policies to protect whistleblowers despite their role in exposing a series of major scandals. Furthermore, whistleblowers who risk their careers to uncover wrongdoing within public services are being victimised by managers who nearly always escape sanction. Furthermore, many government departments are still failing to support employees who come forward in the public interest.

A positive approach to whistleblowing should exist wherever the taxpayer’s pound is spent by the government and public bodies. A startling disconnect exists between our generally good whistleblowing policies and the way they operate in practice. Officials who do try to raise concerns often have to show remarkable courage in coming forward, and the failure to provide effective protection could deter others from doing the same.

I have personally encountered cases of treatment of whistleblowers that were quite shocking, with bullying and harassment from colleagues and government departments unable or reluctant to say whether any action had been taken against their persecutors.

In theory, many departments have improved their whistleblowing policies, but our civil service culture does not encourage those with concerns to speak up. Coupled with that, the inconsistent approach to whistleblowing risks leaving potential whistleblower civil servants not knowing how to raise a concern under the prescribed procedure.

Whistleblowing is a crucial source of intelligence to help the government identify wrongdoing and risks to public service delivery.

If we truly want to incentivise whistleblowing, we must strengthen and widen our law to make it fully conform to the EU Directive on Whistleblowing. We must also, impartially and apolitically, render it meaningfully effective by bringing to life its protective provisions.

However, public attitudes towards reporting tend to change more slowly than the legislation. Raising awareness of whistleblower protection can lead to an increase in cases of reporting and, in consequence, be a valuable tool in the fight against corruption.