Tue | Jun 27, 2017

Light on Corruption | Protected Disclosures Act, 2011: Blowing the whistle on corruption

Published:Wednesday | June 7, 2017 | 6:00 AMDr Omar Hawthorne
Dr Omar Hawthorne

Whistle-blowing is the act of exposing unlawful activities or misconduct occurring in a society or organisation. Corruption typically takes place behind closed doors. Therefore, encouraging individuals who may have information to speak up, while creating and facilitating a safe environment for them to do so, are foundational to an effective anti-corruption framework. The practice of whistle-blowing should be institutionalised and de-stigmatised while ensuring adequate protection for whistle-blowers. Jamaica's Protected Disclosures Act, 2011, is among the best-written legislation in the world pertaining to whistle-blowing, but the lack of regulation on the procedures and implementation might be a pivotal factor in the lack of reported cases to the Commission for the Prevention of Corruption (CPC).

Anti-informer culture still rife

Jamaica has long had an 'informer fi dead' culture. The proverb 'see and blind, hear and deaf', in essence, pay attention to your own business and not meddling in another person's affairs, is adhered to. Consequently, in Jamaica this legislation, in order to gain traction, needs significantly more than just passing the legislation. And as Johnson and Soeters (2015) highlighted, the 'informer fi dead' culture "flourishes within the context of this crisis of public safety, 'anarchic disorder' and a widespread perception by scholars of systemic weaknesses in governance, and in policing". Thus, with the strong cultural sentiments of minding one's own business, the reluctance to blow the whistle on wrongdoings is not surprising. There is often a high personal cost to reporting, notably alienation and fear of retaliation.

The risk of corruption is significantly heightened in environments where the reporting of wrongdoing is not supported or protected. Public- and private-sector employees have access to up-to-date information concerning their workplaces' practices, and are usually the first to recognise wrongdoings. However, detailed regulations on the scope of application of the procedures of the legislation might help in yielding results. The legislation affects both public and private entities, but without regulation, it is unlikely that we will see improvement in reporting.

Fix weaknesses in reporting procedures quickly

Public awareness campaign and training efforts should be given high priority. Especially as it pertains to the types of misconduct on which disclosure may be made or with regard to disqualification of a disclosure for protection in the event that an offence was committed by making it.

A deficit with the Protected Disclosures Act is that it introduces what is tantamount to a burdensome structure for determining what is protected and what is not. This causes concern, in that many disclosures will possibly be denied protection under the act because an employee may not have followed the prescribed procedure correctly.

A weakness in policy administration, after the legislation was passed, is that no efforts were made to launch a public awareness campaign, which is especially needed within a society with a strong anti-informer culture. Raising awareness about the value added of reporting wrongdoings and related protection for the whistle-blower contributes to changing negative cultural perceptions and public attitude towards whistle-blowing, which, by not reporting, may be considered an act of loyalty to an organisation.

What are the incentives to encourage whistle-blowing?

Conceivably, in order to encourage whistle-blowing, a rewards system, including monetary rewards, could be considered in a revised bill. However, this brings into focus several questions: Should the government provide financial incentives for disclosure? Is there a need for this? Would the benefits of having such an incentive scheme outweigh possible negative factors it may bring? If financial incentives were to be provided, how would they be funded? These are questions to be discussed, considered and evaluated.

In assessing other jurisdictions, the use of incentives to encourage reporting has shown to be effective. For instance, in the United States, the False Claims Act allows individuals to sue on behalf of the government in order to recover lost or misspent money, and they can receive up to 30 per cent of the amount recovered. Likewise the Dodd-Frank Act authorises the Securities Exchange Commission (SEC) to pay rewards to individuals who provide the commission with original information that leads to successful SEC enforcement actions.

In South Korea, whistle-blowers who contribute directly to increasing or recovering government revenues can receive four to 20 per cent of funds recovered. In Nigeria, the Whistle-blowing Policy of December 2016 rewards whistle-blowers with 2.5 to five per cent on cash or assets recovered. Within four months the Nigerian government grossed at least US$232 million from asset recovered. In one case, US$151 million was recovered; imagine five per cent of US$151 million for blowing the whistle!

Legislation that offer incentives such as financial rewards to persons who disclose corrupt practices in comparison to legislation like Jamaica's, which seeks merely to avoid retaliation against whistle-blowers, has noticeable positive results. Additionally, if and when citizens risk their livelihoods and lives to expose corruption, there ought to be more than the feeling of doing 'good'.

It's time to review whistle-blowing

legislation

When the legislation was passed, it stipulated that the act shall be reviewed, from time to time, by a committee of both Houses of Parliament appointed for that purpose. Additionally, the first such review shall be conducted not later than three years after the appointed day. Conceivably, I might have missed it, but there is no evidence of a committee being appointed or a review having occurred.

Perhaps now it is prudent that we evaluate and review the legislation as to why we have not seen reports of whistle-blowing and then implement clear regulations and consider a policy on financial incentives. Until Jamaica addresses the lack of regulation and considers compensation for whistle-blowers, a change in the narrative from 'informer fi dead' to 'informer fi live' is unlikely.

Without establishing a clear set of regulations for the act, including the consideration of monetary rewards, the Protected Disclosures Act will be another well-written legislation, but largely ineffective and underutilised in fighting corruption.

- Dr Omar E. Hawthorne is lecturer in International Relations at the UWI, Mona, and author of 'Do International Corruption Metrics Matter?' Send feedback to omar.hawthorne@uwimona.edu.jm or editorial@gleanerjm.com.