I wrote in two previous columns about two sides of the coin. First, the bribe-takers in “Decline of integrity in public service: Can we stem the trend?” and about the bribe-givers in “Corporate Corruption: The Other Side of the Coin”. What we need to realise and understand is that bribe-takers would not exist if bribe-givers did not exist. It is bribe-givers that create bribe-takers. And the bribe-givers that we need to worry about are not the man in the street who bribes a peon in a government office to get a small job done nor the motorist that bribes a traffic cop to avoid the inconvenience of wasting time in traffic courts. Yes, for the overall social discipline of a civilised society we need that too. But those who we need to really worry about are the corporate bribe-givers who use their millions to bribe government ministers and high government officials and thereby rake in zillions in profits from shady deals and government contracts. They include well-laid plans with politicians to get their ‘people’ into high places so that insider-dealings are facilitated and massive scams can be put into operation. These are not impulsive, ad hoc ‘one-act plays’, but long-playing dramas with long gestation periods and long-term goals and objectives.
Is there anyway that we can break this vicious cycle? What Ms. Sugandika Fernando did in a public talk a couple of weeks ago, renewed my interest in an aspect that had kept me engaged in a few years ago and did a little bit of researching into it. Can there be a wedge in the door of the vicious cycle of corruption and bribery through strengthening of existing laws and enacting new path-breaking legislation?
There is a weak link in this web of corruption in high places. That is, that within the corporate higher echelons and managerial networks, there are a few individuals whose conscience gets the better of their personal, private, pecuniary interests. They are the ‘corporate whistleblowers’. The insiders who blow the proverbial whistle. Can this be used as the wedge in the door?
Though there have been many famous whistleblowers throughout written history, my interest was awakened by two incidents relating to medicine. Both occurred in the mid-1990s. One was when David Franklin exposed illegal promotion of an epilepsy drug Neurontin marketed by Park-Davis for un-approved uses while withholding evidence that the drug was not effective for these conditions. Parke-Davis’s new owners Pfizer later pleaded guilty and paid criminal and civil fines amounting to $430 million. It also exposed complicity and active participation in fraud by renowned physicians and demonstrating how medical literature had been systematically adulterated by the pharmaceutical industry and its paid clinical consultants. The second was the battle between Dr. Nancy Olivieri, a paediatrician at the Hospital for Sick Children, University of Toronto and the drug firm Apotex. I discussed this case in detail in the ‘Prof. K.N. Seneviratne Memorial Oration’ titled “Conflict of Interest: Relationship between Industry and Research” in 2009. As an insider, she had to fight against the University of Toronto administration itself to safeguard children from adverse effects of a drug on trial.
There have been many celebrated cases of whistleblowing. Some of their stories have been made into movies. They include: Daniel Ellsberg, Frank Serpico, Vladimir Bukovsky, W. Mark Felt (‘Deep Throat’ of Watergate fame), Stanley Adams, Karen Silkwood, Clive Ponting and within the last decade, Andrew Maguire, Chelsey Manning and Edward Snowden. The most celebrated in recent times has been Edward Snowden the American computer professional and former National Security Agency (NSA) employee, who, n 2013, copied and leaked thousands of classified information from the NSA to journalists. The leaked material appeared in The Guardian and The Washington Post, Der Spiegel and The New York Times. What all have in common is that they exposed corruption and fraud from within the institutions that they worked in.
Though often, within the corporate world, whistleblowers are considered disloyal criminals who give out company secrets, many governments have decided that they serve an important role in society. A whistleblower must fulfil two criteria to be so named. The first is that they should be acting in the public interest and not out of personal grievances. The second is that they must reasonably believe that the disclosure tends to show past, present or likely future wrongdoing falling into any one or more of the following categories: (i) criminal offences (this may include, for example, types of financial impropriety such as fraud); (ii) failure to comply with an obligation set out in law; (iii) miscarriages of justice; (iv) endangering of someone’s health and safety; (v) damage to the environment; or (vi) covering up wrongdoings in the above categories.
With these circumscribing limits in mind, the US Government enacted the Whistleblower Protection Act which was made into federal law in the United States in 1989. It was made to protect federal whistleblowers who work for the government and report agency misconduct. Such whistleblower protection laws have not prevented employers from creating a situation where whistleblowing becomes a very risky business. Often, companies have instituted legal proceedings against their whistleblowing employee/s or have simply sacked them as the employee safeguards against dismissal is almost non-existent in the US.
Therefore, the whistle blower must take the risk of litigation, loss of employment and harassment. In India, two whistleblowers were murdered (Shanmugam Manjunath in 2005 and Lalit Mehta in 2008). We know how the US government used its diplomatic muscle to try and get the greatest agent of whistleblowers, Julian Assange of ‘Wikileaks’ fame incarcerated on rape charges by the Swedish government. He still languishes in the Ecuadorian embassy under diplomatic sanctuary.
In the UK, the Public Interest Disclosure Act (PIDA) of 1998 provides the right for a worker to take a case to an employment tribunal if they have been victimised at work or they have lost their job because they have ‘blown the whistle’. In India, The Whistleblowers’ Protection Bill of 2011 was made into law as recently as 2014. Australia, Canada, and about 50 countries have adopted, or are in the process of adopting, limited protections as part of their anti-corruption and freedom of information legislation.
Most of the laws that have come into existence have been mainly focussed on ‘Public Sector Whistle blowing’. Even with the existence of whistleblower protecting laws, government agencies and corporate employers use every possible option to evict the whistleblower from employment or indulge in other forms of harassments.
Private sector whistleblowing, though not as high profile as public sector whistleblowing, is arguably more prevalent and suppressed and therefore less well-known in Sri Lanka. I did mention in my previous column, the high-profile corporate bribery cases by big corporations that were disclosed by the Senator Frank Church Committee. Such high profile cases of corporates or individuals had never surfaced in Sri Lanka until the Central Bank bond scam of 2015.
The ‘Sunday Times’ reported in January 2017 about Maithri Guneratne, Chairman of Lanka Coal Board, having been sacked from his post by the government for whistleblowing. He exposed the machinations of a shady coal deal. Several NGOs have been campaigning for legislation to be enacted in Sri Lanka to safeguard and protect whistleblowers. Our record in this aspect has been found to be seriously wanting. The existing legal remedies have been completely ineffective. The Commission to Investigate Allegations of Bribery or Corruption (CIABOC) is a classic example of impotence and ineffectivity. Seminars and workshops are being held regularly where the need for legislation to protect whistleblowers have been strongly voiced. Opinion on the need to develop a ‘whistleblowing culture’ has been expressed. Some have claimed that section 40 of the Right to Information Act No. 12 of 2016 protects whistleblowers. This is misleading. It does not. It only states that an officer or employee of a public authority cannot be punished, or disciplinary action taken for releasing or disclosing any information which is permitted to be released or disclosed. That has nothing to do with whistleblowing.
Many have expressed pessimism that laws to protect whistleblowers will not be effective in combating bribery and corruption. Whereas it may eventually be proved correct, we cannot dismiss the requirement of such legislation in a modern democracy. The laws must first be in place to test whether they are effective or not. Whether such a law would encourage employees in both the state and corporate sectors to be courageous and expose corruption in their institutions needs to be tested. For this to happen, and a change of culture and social behaviour to occur, a comprehensive educational programme must be instituted in schools and workplaces on the concepts and ethical bases of whistleblowing.
Inviting CEOs and MDs of state institutions and private corporations for seminars on whistleblowing is counterproductive and totally misdirected. We have to make watchdogs out of middle and low-level officials who observes the ‘dealings’ of their bosses. Waiting for the few whose conscience dictates to do the ‘right thing’ despite possible personal consequences without any legal protection or remedy, is not the way to go. Those in governing positions in state and corporate entities, who are the usual culprits in big buck shady deals must feel that there are a hundred prying eyes within their institutions who will blow the whistle. If such an ambience is created within the workplace, that will make detection possible and public exposure more likely than before, it would be some deterrent. It could compel those indulging in fraud and shady deals to avoid the risks and stick to the ‘straight and narrow’.
Hence is it not time that we enhance the Right to Information Act no. 12 of 2016 with a Whistleblower Protection Act of 2018?
Let us put a foot in the door of rampant corruption and bribery. Let us not wait for the door to slam in our faces anymore. Let us create space for a shaft of light and not keep cursing the darkness.
