A whistle-less whistleblower

Malta got its Protection of the Whistleblower Act as late as 2013. 

Indeed this law came into force on 15 September 2013. Yet it is not without its difficulties, which can of course be improved upon. It makes ‘provision for procedures in terms of which employees in both the private sector and the public administration may disclose information regarding improper practices by their employers or other employees in the employ of their employers and to protect employees who make said disclosures from detrimental action’. 

The expression ‘improper practice’ is defined in article 2(1) of the Protection of the Whistleblower Act, 2013. However, excluded from the provisions of the said enactment are: (1) members of a disciplined force; (2) members of the Security Service; and (3) persons employed in the foreign, consular or diplomatic service of the government. Members of a disciplined force include the Armed Forces of Malta, the Police Force, the Department of Civil Protection Personnel, and the Corradino Correctional Facility Officers. 

Nevertheless, the minister responsible for justice may bring these categories of employees within the purview of the enactment as he is empowered by article 2(3) of the Protection of the Whistleblower Act, 2013 to ‘make regulations regulating the manner in which the provisions of this Act will apply in their regard, and in doing, the Minister may make not applicable or modify the provisions of this Act as necessary for the purpose of the protection of national security, defence, intelligence, public order and the international relations of the State’. This is a Henry VIII clause that allows the minister to pick and choose which provisions of the Protection of the Whistleblower Act, 2013 should apply or not to these three categories of personnel above mentioned. 

However, at the moment of writing no such regulations have been made and hence the three categories of employees remain outside of the ambit of the law and cannot benefit from the protection of the enactment once the Protection of the Whistleblower Act, 2013 has not been extended, with or without modifications, in their regard. At the current state of play, therefore, there can be no whistleblowers within these three categories of employees or, should there be, they will not enjoy the protection of the law if they come forward to blow the whistle. For these three categories of employees the Protection of the Whistleblower Act, 2013 continues to remain a dead letter.

In terms of Article 3 of the Protection of the Whistleblower Act, 2013, no person may be subjected to detrimental action on account of having made a protected disclosure. Article 4 has it that a whistleblower who makes a protected disclosure is immune from civil or criminal proceedings and from disciplinary proceedings. It is not at all clear why administrative proceedings have not been included in this provision bearing in mind that quite a number of criminal proceedings are being depenalised into administrative proceedings. One understands that this might have been an oversight. 

A whistleblower, in terms of article 5 of the Protection of the Whistleblower Act, 2013 does not enjoy criminal immunity from prosecution when s/he was ‘the perpetrator or an accomplice in an improper practice which constitutes a crime or contravention under any applicable law prior to the disclosure’. Nevertheless, due account can be taken by the court of the fact that the person accused was a whistleblower and ‘the punishment of such whistleblower may be mitigated or remitted’ by the court in terms of article 5(2), proviso (i). 

The same principle is applied to a whistleblower who was the perpetrator or an accomplice in the improper practice reported by him. In such case, according to article 5(2), proviso (ii), the court may find him responsible for the payment of damages only ‘for such part of the damage as he may have caused’. In the case of an employee of the public administration who is facing disciplinary proceedings, the public administration should not seek his dismissal in terms of article 5(2), proviso (iii). Other favourable conditions to a whistleblower follow in article 5(3) where s/he discloses an improper practice constituting a criminal offence and his or her disclosure has helped the police to apprehend the perpetrator of the criminal offence – see article 5(3). 

According to article 5(4), the Attorney General may exempt a whistleblower from criminal proceedings after having consulted with the Commissioner of Police and a judge of the Superior Courts who does not determine criminal trials. Article 6 (1) prohibits the disclosure of the whistleblower’s identity unless the latter expressly consents in writing thereto. 

Strangely enough, Article 6 does not have a corresponding penalty in case of its breach. Why is no provision inserted in the law to contemplate the punishment through criminal means of a whistleblower reporting officer from disclosing the whistleblower’s identity? No such crime is established in Part IV of the Protection of the Whistleblower Act, 2013 entitled ‘Offences and Penalties’.  Whistleblowers are also granted an action to protect themselves from a reprisal for a protected disclosure as per Article 7(1). The court is empowered to inflict moral damages and, to the whistleblower’s benefit, these moral damages are not capped. Although the lex generalis – the Civil Code – does not provide for a provision in terms of which non-material (or moral) damages may be granted, there are some special laws – lex specialis – that grant such damages. 

Such is the case with Articles 28(1) and 29 of the Press Act, Article 3(2) of the Promises of Marriage Law, article 12(2) of the Enforcement of Intellectual Property Rights (Regulation) Act, article 14(b) of the Consumers Affairs Act, Article 46(2) of the Constitution of Malta and Article 4(2) of the European Convention Act. 

Article 8 allows for a right to compensation after detrimental action having been suffered by the whistleblower. The law then defines protected disclosures and saves information protected by legal professional privilege. Article 22 is a dangerous provision for it allows the minister, without any form of judicial or other type of review, to exempt anybody from the provisions of the Protection of Whistleblower Act, 2013 in the case of certain legitimate aims. This provision goes beyond the three categories of persons who are exempt from the operation of the law listed in Article 2(3) of the enactment. 

Its blanket, catch all, umbrella and sweeping provision, without any form of review, gives cause for concern as it is not clear whether there is a pressing social need for such a provision and whether it is really needed in a democratic society which respects the rule of law and which aims at ensuring the accountability of government. It reads as follows: ‘The Minister may, for the purpose of the protection of national security, defence, public order and the international relations of the state, by notice in the Gazette exempt any person or class of persons without retrospective effect from all or any of the provisions of this Act on any ground which to him may seem sufficient. Any such exemption may be made subject to such conditions or to the fulfillment of such other procedures, formalities or obligations, as the Minister may deem appropriate.’

Although the Protection of the Whistleblower Act, 2013 is a feather in the cap of democracy, it still contains certain provisions that discourage the mass media from carrying out their fourth estate public watchdog duty. 

Briefly, the main hurdles are the following. A whistleblower who is a member of a disciplined force, the Security Service, or an employee of the foreign, consular or diplomatic service (Article 2(3)) does not enjoy the protection of the enactment if he makes a protected disclosure. Again, a whistleblower who is a person or class of persons exempt from the operation of any or all of the provisions of the law who fulfils the legitimate aims laid down in the law (Article 22) cannot make a protected disclosure. Further, a whistleblower who is a person who may be subjected to the taking of administrative proceedings in his respect (Article 5) does not enjoy immunity from these proceedings; nor may he enjoy some other lesser or remitted form of punishment. 

Finally, a whistleblowing reporting officer who does not maintain the secrecy as to the identity of a whistleblower, though enjoyed to keep such information secret (Article 6), and improperly divulges such information, is not subject in terms of Article 19 to a criminal punishment – the enactment does not punish such conduct through a specifically established offence for the purpose but relies on the general crime contained in the Criminal Code and on disciplinary proceedings which may be instituted against the whistleblowing reporting officer. 

In these circumstances, the mass media will be very wary of having recourse to the protection afforded to a whistleblower under the Protection of the Whistleblower Act, 2013 who would want to confide his story to the mass media supposedly under the protection of the law. One thus looks forward to the improvements being made to the Protection of the Whistleblower Act to ensure that the benefits this law provides to a democratic society are fully reaped.

Prof. Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta