When someone does something wrong, you need someone else who knows what’s going on to speak up.
If a bank is laundering money for corrupt tyrants, you need an employee to blow the whistle on it. If a brewer is cutting corners when sourcing water; if a cannabis distributor is hiding research into its addictive properties; if a hospital contractor is siphoning off public money and handing some out as kickbacks to the politicians who awarded them the contract; if a police investigator is going on holidays with the criminal they’re supposed to handcuff; you need someone close to them to speak up.
Why would they speak up if it would cost them their job, or expose them to some massive lawsuit for defamation or compensation? Why would they risk being charged for commercial espionage or betraying state secrets? Why would they risk prison just for letting you know that the producer of the product you are buying or the government you are electing to rule over you are cheating you or robbing you?
This is what whistleblower protection is for. To encourage people who know of wrongdoing to expose it, to protect the rest of us from the harmful consequences of the crimes they denounce. It is not enough to appeal to people’s sense of civic duty, though they certainly need that to live down accusations of snitching or espionage.
Consider the case of Maria Efimova. She alleged industrial-scale money laundering at Pilatus Bank. Joseph Muscat accused her of being a honey trap working for the Russian spy agency, acting on warlike instructions from Vladimir Putin.
She escaped the country fearing for her life. While in hiding, she was smoked out with trumped up charges against her and her husband filed in Malta and in Cyprus. Repeatedly, overseas agencies and courts dismissed the accusations against them as politically motivated. But she can’t yet come out of hiding because Malta still chases her.
Consider the case of Jonathan Ferris. He was fired from his job as investigator at the financial agency and publicly threatened with prison if he would provide the agency authorised to grant him protection with the information needed to assess his application. He ended up without a job and having to defend himself from criminal persecution.
These two were whistleblowers who were denied the protection of the whistleblower protection law. A whistleblower protection law that doesn’t protect whistleblowers is not only useless, it is dangerous because it can give witnesses a false sense of security and lead them to professional suicide.
We’ve had a whistleblower protection law for almost nine years. It was never used except to protect a witness produced by Ian Abdilla to testify against Giovanna Debono’s husband in a case that proved to be a hate-fuelled pogrom on an opposition MP but otherwise entirely baseless.
If you want to expose, say, a government minister for financial crime, you first need to ask an appointee of the minister if they’d be happy with that- Manuel Delia
Meanwhile, a 2019 EU directive introduced higher standards for European whistleblower protection laws. Since then, the government has ignored repeated and public calls for consultation on the changes. They also ignored the ombudsman who publicly complained he was never consulted when the law assigned to his office responsibilities that the constitution prevents him from living up to, meaning that entire section of the law is as good as dead.
On November 15, they published a bill without any consultation and rushed it through all stages of parliamentary approval in less than a month. None of the problems with the old law have been addressed, which means that, though the law is longer, it is just as useless as ever. Add new problems with the law, which have been spotted in research by Repubblika’s partners at the Whistleblowing International Network.
The law only protects whistleblowers who report to formal whistleblowing units. But, since the first such law was introduced in the UK in the 1990s, the idea is to protect from retribution anyone who tells their boss that what they’re doing is wrong.
Without this, the law only covers the tip, rather than the iceberg, of protected information.
As has happened up to now, whistleblower units do not include any of the structural guarantees for independent channels free from conflict of interest with access to organisational leadership.
We’re back to the Ferris scenario. If you want to expose, say, a government minister for financial crime, you first need to ask an appointee of the minister if they’d be happy with that.
A loophole in the definitions effectively cancels out the legal burdens of proof for protection by excluding coverage for review whenever an action “is justifiable for administrative or organisational reasons”, whether or not it is retaliatory. Which means they wrote into the law what they did to Ferris to be able to do it to anyone else. “No, your honour, we fired him because he was redundant and under probation. It had nothing to do with the fact that he exposed suppressed investigations into corrupt politicians.”
The legislation ignores the directive’s requirements for transparency of its impact, as well as a national review every three years. Not surprising because, judging by the last nine years, the impact to report will be nada. A dead letter law, amended in a rush and practically in secret with dead letter ‘improvements’, will change nothing.
In the meantime, the secrets of corrupt politicians and crooked businesses remain safe and you’re no wiser.
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