KUALA LUMPUR – As provisions contained in the Whistleblower Protection Act 2010 (WPA) may not be able to protect independent journalist Lalitha Kunaratnam at present, the need to amend the act has risen, legal experts said.
The comments come as Malaysian Anti-Corruption Commission chief commissioner Tan Sri Azam Baki in seeking legal recourse against Lalitha following her exposé had claimed that she is not protected by the act having publicly published her findings on alleged wrongdoings instead of approaching authorities with her report.
His claim is backed by constitutional lawyer Datuk Seri Jahaberdeen Mohamed Yunoos who told The Vibes that when an individual comes forward and accuses another of impropriety, proper procedure must be followed.
“Under Section 6 of the WPA, a whistle-blower is someone who makes a disclosure or provides information of any wrongdoing to an enforcement agency.
“The act excludes those who go public with their findings because the law functions as a balance between individuals who attempt to defame others by imputing improper conduct and those who have a genuine motive to disclose wrongdoings.
“It is good that calls to improve the act have been made, but until such changes have been implemented, we are governed by the current provision.
“However good our intentions are, we must ensure that the rule of law is complied with,” he said.
Jahaberdeen added that to be fair towards those being accused, check and balance measures must be carried out alongside any definitional extension of a “whistle-blower” so that individuals are not defamed or subjected to unnecessary investigations for no reason.
Speaking to The Vibes, former Bar Council president Salim Bashir Bhaskaran expressed some reservation on the rigidity of certain provisions under the act, especially considering that the act is dedicated to protecting those who come forward with information on impropriety.
“It is rather unfortunate that the WPA does not provide coverage for any disclosures made through means other than a direct approach to specific enforcement agencies mentioned under the act.
“The strictness of the provision has caused uneasiness in some who feel that they are victimised for disclosing details to parties other than the relevant authorities,” he said.
Salim added that there is a “strong need” for amendments to the act to ensure that those who reveal information on misconduct, regardless of whether they bring their report to a particular enforcement body, are provided immunity from legal liabilities.
Similarly, Advance Tertiary College academic director and law lecturer Daniel Abishegam said that the method in which an individual chooses to expose incriminating particulars should not influence their affordment of protection from civil and criminal prosecution.
“To define a whistle-blower on such narrow terms defeats the purpose of such protection.
“If the intent of the WPA is to genuinely protect the person who disclosed wrongdoing, then why should it matter to whom the complaint is made ?
“If the idea here is to create an environment that will encourage whistle-blowers so that corruption can be weeded out, especially among those in powerful positions, then such a narrow definition of a whistle-blower should not be adopted,” he said.
Daniel added that since Lalitha’s claims address alleged wrongdoings by the head of an enforcement agency, making it compulsory for her to file a report to another government entity is “counter-intuitive”.
“The possibility of there being a cover-up cannot be ignored and the provision under the act should take this into account.
“This is not to cast unwarranted aspersions on any agency, but it is a basic principle of natural justice,” he said.
On January 12, Azam had decided to sue Lalitha for RM10 million in damages after he claimed that two articles she had written contained defamatory sentiments against him.
The articles were published by Independent News Service late last year.
Lalitha has reportedly responded that she is ready to take on the suit. – The Vibes, February 15, 2022
