The Bill proposes to set in place procedures which private and public sector employees may and should use to disclose information on improper practices conducted by their employers and/or other employees, as well as protect employees making such disclosures from any detrimental action. The Bill is largely split into two main parts, that is the procedures set in place to effect a disclosure, and the protection granted to the person who makes the disclosure, i.e. the “whistleblower”.
Procedure to be followed to effect a disclosure
Prior to analyzing such proposed procedures, the Bill sets in place a definition of the terms used. A “protected disclosure” is defined as “an internal disclosure or an external disclosure of information, made in writing or in any format which may be prescribed”, and it is further defined in the Bill as a disclosure made in good faith and if the person making the disclosure reasonably believes that “the information disclosed and the allegation contained in it, are substantially true”, “the information disclosed tends to show an improper practice being committed by his employer, another employee of his employer or by persons acting in the employer’s name and interests” and “the disclosure is not made for purposes of personal gain”.
However, the question arises: What makes a protected disclosure “protected”? Article 2 of the Act dealing with Internal Disclosures states that an internal disclosure is protected only if made “in the manner established by internal procedures established by the employer for receiving and dealing with such disclosures”. Therefore, as set out in article 12 of the proposed act, every employer must have a system of receiving disclosures about improper practices committed in his organisation, which must include a whistleblowing reporting officer to whom disclosures are made. Therefore, if this procedure is followed by the discloser, the disclosure is protected.
The Bill, defines five authorities prescribed to receive external disclosures i.e. the Commissioner of Inland Revenue, the Financial Intelligence Analysis Unit, MFSA, Permanent Commission Against Corruption and the Ombudsman, and each authority covers a particular category of matters which it is authorized to cover by the proposed act. An external disclosure is a disclosure made to one of these authorities, and shall only be protected if an internal disclosure has been made or has been attempted or else if an exhaustive list of options set out in the proposed article 16 is satisfied. One such option would be, if the employee reasonably believes that the head of the organisation may be involved in the improper practice alleged in the disclosure, and in any such case, regards shall be had to the seriousness, likelihood of continuation, whether disclosure is made in breach of confidentiality duties of the employee to a third person and whether the employee complied with the internal procedures within that organisation.
Subject of the disclosure?
Essentially, disclosures contain information and allegations of “improper practices”, which the Bill defines exhaustively under article 2. One of the definitions of improper practices is “corrupt practices” which essentially refers to select acts and/or omissions found in the criminal code i.e. unlawful exaction, extortion, bribery, failure of duties, embracery and any aggravation thereof, when committed by public officers, members of the judiciary and members of the executive.
Protection of the whistleblower
The Bill protects the whistleblower in a number of ways, namely protection from detrimental action, that is, that no person may be subject to any act causing injury, harassment, occupational detriments, calumnious accusations and or civil, criminal or disciplinary proceedings for having made a protected disclosure.
Furthermore, the identity of the discloser is protected by the whistleblowing reporting officer or unit receiving such protected disclosure, unless such discloser consents in writing, or whistleblowing reporting officer reasonably believes that disclosure of identity is necessitated or essential under defined conditions in article 6.
The whistleblowing unit, or whistleblowing reporting officers have a duty to inform the discloser of the status of the improper practice disclosed. The Bill lays down criminal liability of a maximum of three months imprisonment or to a maximum fine (multa) of €1,200 to those convicted of compelling any other person to do or abstain from doing any of his legal rights provided for in the Bill, which essentially, serves as a detriment to those who seek to prevent disclosers from making any protected disclosures.
M. Clara Borg