A whistleblower serves as a foundational element of transparency and integrity within an organization. In the domain of law, a whistleblower is authorized to expose illegal activities, corruption, violation of organizational regulations and so forth. In the context of Bangladesh, where corruption has been a wide-spread problem for decades, facilitating the actions of whistleblowers can prove to be highly beneficial in order to combat corruption and organizational wrongdoings. However, despite the potential repercussions of such actions- the failure of Bangladesh legislation to protect its whistleblowers escorts serious criticism and concerns among scholars and academicians. Resolving such issues is overdue and the procedure must start to address the issues of whistleblowers protection.
The concept of whistleblower comes from the Latin term Qui Tam, which dates back to Medieval England of the 7th century. It is shortened from the Latin phrase “qui tam pro domino rege quam pro se ipso in hac”, meaning “He who prosecutes himself as well as for the King.” The lawmakers adopted the term to be synonymous with whistleblowers exposing organizations on behalf of their government. The concept of disclosing organizational wrongdoings gained popularity due to its facilitation of transparency mechanism. In the modern context, the legal mechanism of whistleblowing has been strengthened in the domain of international law, with the expectation of domestic jurisdictions subsequently ratifying the same.
The United Nations Convention Against Corruption[UNCAC] issues adequate mechanisms to protect the whistleblowers by stating that each signatory party shall consider incorporating appropriate measures within its domestic jurisdiction to protect any person from unjustified treatments for reporting wrongdoings to competent authorities in good faith in accordance with the convention.[Art.33] Additionally, the International Covenant on Civil and Political Rights[ICCPR] enshrines the freedom of expression and right to seek information of all kinds.[Art.19] The article provides sufficient protection for whistleblowers against injustice for imparting information of misconduct to competent authorities. Moreover, OECD Standards of 2006 binds its members to undertake measures to protect the whistleblowers. It is important to mention that Bangladesh has agreed to comply with these instruments and standards.
Bangladesh, within its domestic jurisdiction, has lacked a proper whistleblowing mechanism for decades. On the contrary, the Official Secrets Act 1923[OSA 1923] has been a significant barrier on the path to disclosing wrongdoings of governmental departments. However, The Disclosure of Public Interest Information(Protection] Act 2011[DPI 2011] was enacted to lay down the whistleblowing mechanism in the country’s legislation. It is encouraging that the DPI 2011[s.3] can override any law of Bangladesh, including the OSA 1923. It provides protection to whistleblowers to some extent. Moreover, the DPI 2011 further approves non-disclosure of identity without consent, remedy from civil and criminal procedures related to disclosing actions and unjustified treatment of the person carrying out the said action.[s.5] The fundamental aspect of the whistleblowing mechanism in Bangladesh is based on the good faith of the disclosure[s.4], which is enacted in the spirit of UNCAC.
However, criticism can be made as to how strong the provisions of DPI 2011 are to protect the whistleblowers. Starting from the definition, it is rather ambiguous as to who falls under the purview of “discloser”.[s.2(5)] such ambiguity may expose a person or persons to significant risk while carrying out the actions prescribed within the act. Additionally, the definition of “competent authority” raises questions due to its lack of adequate clarification and guidance for the whistleblower to disclose information.[s.2(1)] With regards to non-disclosure of identity, the DPI 2011 states that the court, during the hearing stage may disclose the identity of the whistleblower- if it deems the claim is false or identity disclosure has become a requirement to ensure fair trial.[s.5(6)] Such a provision is found to be extremely problematic by scholars and academicians as it may significantly discourage the whistleblowers to come forward. Furthermore, the act does not specify if the whistleblower is protected from the time of reporting. Such ambiguity creates exposure for the whistleblower to face unjustified treatment. To add on, the act does not oblige the employer with the burden of proof to establish that the person was not fired from his employment due to his disclosure, which creates scope for retaliation. Likewise, the DPI 2011 does not provide any structure to establish a whistleblowing culture within the organizations. A whistleblower must be protected within his work environment for coming forward, for which there is no alternative to creating a culture of whistleblowing. This act alone is not sufficient in that regard. The lack of subsequent rules and regulations, in addition to DPI 2011 creates a problem to establish such a culture where the whistleblower is protected.
Gaps and loopholes regarding the protection of whistleblowers in Bangladesh are evident. It requires more attention and efforts of those concerned with legislation in order to address it in a manner that ensures the protection of whistleblowers and annihilate any aspect of the law that exposes them in the way of harm for disclosing wrongdoings and misconducts for the betterment of the country.
About author :
Nafis Chowdhury is a LL.M-Professional student at Bangladesh University of Professionals(BUP). He is currently working as an Apprentice Lawyer at District and Sessions Judge Court, Dhaka. Attaining LL.B degree from BRAC University, he has participated in multiple Moot Court Competitions and legal research conferences. His areas of interest are Constitutional Law, Anti-Corruption Law and Human Rights.