Review whistleblower Act, says Bar Council

By Benedict Ng (benng@mmail.com.my)

PETALING JAYA – The Malaysian Bar Council has called for a review of the Whistleblower Protection Act 2010 because it is not achieving its goals.

Vice-president Steven Thiruneelakandan said Section 6(1) of the Act does not allow disclosure of information specifically prohibited by any written law.

“What is ‘prohibited by any written law’ includes disclosure of information protected under the Official Secrets Act 1972 and the Banking and Financial Institutions Act 1989 (Bafia),” he said.

“This prohibition should be lifted to encourage whistleblowers to come forward and disclose information on improprieties without fear of facing criminal sanctions.”

He said the Act should also provide disclosure to independent bodies such as the Human Rights Commission of Malaysia (Suhakam) as there is no such provision at present.

“The Act does not achieve the desired level of protection for whistleblowers and it is not as effective as it should be in promoting the disclosure of wrongdoings,” he said.

Steven felt the court martial of Mej Zaidi Ahmad for bringing to light the inefficacy of indelible ink during elections last year was unacceptable.

“The allegation suggests a pre-determination of the case against Mej Zaidi and is a breach of procedural fairness,” he said.

“The court martial had proceeded in haste and had compromised the integrity of its proceedings.”

Transparency International Malaysia (TI-M) president Datuk Akhbar Satar said the Act did not protect whistleblowers.

He said if individuals were to release statements on improper conduct to the public or press, the Act would automatically be not applicable.

“The said law requires the whistleblowers to only report directly to the designated agencies to be protected,” he said.

“One may file a report with the Malaysian Anti-Corruption Commission (MACC) to investigate before proceeding further.”

Akhbar said if Mej Zaidi had followed standard operating procedures and filed a report with the MACC, he would not have been prosecuted.

In 2010, the Whistleblower Protection Act 2010 came into effect on Dec 15 to curb corruption and encourage informers to expose corrupt practises and other misconducts.

It was also formulated to provide immunity to informers from civil or criminal charges if applied accordingly.

What about the real culprits behind the indelible ink fiasco, asks PKR

After whistleblower Major Zaidi Ahmad's dismissal from the Armed Forces, PKR and election watchdog Bersih 2.0 want to know what has been done to penalise the real culprit – the company that supplied the controversial ink that washed off easily, leading to claims that the May 2013 general election results were compromised.

PKR's Rafizi Ramli told The Malaysian Insider that even if the contract for the supply of the ink was given to a government crony company, the supplier should have delivered the right product.

"Even if the company that supplied the ink was a crony (of Putrajaya), the least they could have done is to make sure that the ink was indelible," the Pandan MP said.

"And if Major Zaidi was punished for merely stating the truth, then a more severe or harsher punishment should be given to those who are responsible for the whole mess in the first place."

Rafizi, who is PKR secretary-general, had revealed in Parliament last year that the indelible ink contract was given to a Mohamed Salleh Mohd Ali, who is closely linked to country’s leadership and the Election Commission’s (EC) top officials.

He said Integrated Challenger Malaysia Sdn Bhd, one Mohamed Salleh’s companies, not only secured the contract to supply the ink but also T-shirts and caps for GE 13 in May 2013. Salleh, he had said then, was a “pro” at conducting direct negotiations with the government. He had even secured contracts from the Defence Ministry.

The PKR lawmaker had earlier revealed that his investigations showed that the contract for the ink supply was given to a company owned by a Singaporean who had no expertise on the matter.

He also disclosed that the company did not have the capital for the job and had met a Kampung Baru businessman to acquire a RM7 million loan.

Rafizi further demanded the resignation of the entire EC as the public had lost confidence in it.

He told The Malaysian Insider that the EC officials who had chosen Integrated Challenger as the ink supplier should also be hauled up.

"Until today, no one has been held accountable for the supreme wrong that happened. No one in the EC has been hauled up or punished for selecting this company to supply the ink."

He said after GE 13, even the EC had admitted it had made a mistake in ordering the substandard ink.

"In that sense, I cannot understand why someone is being penalised for stating the plain truth, which was reinforced by the thousands of reports nationwide about the ink," Rafizi said.

"Contrastingly, the punishment given to Major Zaidi and his subsequent sacking from the military gives the impression that one will penalised for stating the truth."

Zaidi, 45, was yesterday dismissed from the Royal Malaysian Air Force after 26 years of service for breaching two standing orders by giving a media statement without the consent of the Defence Ministry, and for leaking confidential information without the consent of the Armed Forces Council.

The gist of his media statement was the indelible ink used in the general election washed off easily, thus allegedly compromising the integrity of the polls.

"The politically motivated conviction and punishment, I believe, is to send a signal to the public that if you tell the truth that puts the ruling government in a bad light, you will be penalised," Rafizi, who is also PKR vice-president, said.

"Major Zaidi is one of the brave ones who dared to come forward to tell the truth."

Election watchdog Bersih 2.0 also highlighted the fact that despite Zaidi's efforts, no action has been taken against the EC to date.

"No one from the EC has ever had to account for this sham. Nothing has ever come from the hundreds of police report lodged against the EC over this, except for this particular one, which resulted in punishment for the whistleblower instead of the wrongdoer," it said in a statement.

"Major Zaidi has played his role as a citizen to highlight the biggest scandal among the irregularities that marred the 13th general election. For that, he has paid a heavy price, while Malaysia, too, has lost a fine soldier."

Bersih said it was "extremely disappointed" with the verdict, adding that the army man had only lodged a report over the failure of the indelible ink as he did not want the elections to be marred.

"Bersih 2.0 knows how committed Major Zaidi is as a citizen, a family man, and a soldier. It is precisely because of his personal, professional and societal commitment that he lodged a police report over the failure of the indelible ink during early voting in the 13th general election.

"He also wanted to protect the military’s image from being tarred alongside that of the EC – because, to him, keeping silent would be complicit to the farce being perpetuated on the people.” – January 13, 2015.

- See more at: http://www.themalaysianinsider.com/malaysia/article/what-about-the-real-culprits-behind-the-indelible-ink-fiasco-asks-pkr#sthash.IfFiwWo0.dpuf

It is the armed forces and the Najib government which had been dishonoured by Major Zaidi’s conviction and the travesty of justice in sacking him for standing up for the truth

By Lim Kit Siang Blog,

Major Zaidi Ahmad “dishonourably discharged” from the armed forces by a court martial for blowing the whistle about the washable “indelible ink” in the 13th General Elections?

How can a person be “dishonourably discharged” for doing an honourable thing, as speaking and standing up for the truth in a nation that cherishes truth and moral values?

It has been said that justice is truth in action. In Major Zaidi’s case, we see truth in action being penalized, making the court martial proceeding a travesty of justice and blot on the moral conscience of the country.

It is the armed forces and the Najib government which had been dishonoured by Major Zaidi’s conviction and the travesty of justice in sacking him for standing up for the truth.

Major Zaidi did not tell any lie or falsehood when he revealed that the indelible ink used in the 13th General Election could be washed off.

Bersih has rightly pointed out that “”Nothing has ever come from the hundreds of police report lodged against the Election Commission over this except for this particular one, which resulted in punishment for the whistleblower instead of the wrongdoer”.

The Election Commission owes in particular Major Zaidi Ahmad a duty of full recompense, as Major Zaidi Ahmad had neither told a lie nor a falsehood.

The fault is not Major Zaidi Ahmad but must be fully and absolutely borne by the Election Commission.

The Election Commission should fully compensate Major Zaidi Ahmad for all the monetary losses in remuneration and pension entitlements as a result of the unjust decision by the court martial today.

At this moment of national moral crisis in the country, when lies, falsehoods, chicanery and dishonesty seem to rule the roost in public life instead of honesty, probity and industry, Malaysia needs more Major Zaidis at all levels of government instead of drumming them out of public service.

If there is any case where the Defence Minister or even the Prime Minister should intervene to ensure that Major Zaidi can continue his sterling service in the military, this is the one.

Is Hishammuddin or Najib capable of such greatness?

More protection for whistleblowers

The Star

Malaysia has joined more than 50 countries in introducing the whistleblower protection laws in varying scopes as part of their anti-corruption efforts.

The laws are meant to encourage individuals to speak out if they find corrupt practices or improper conduct in their workplace.

It provides protection to informers, or “whistleblowers”, in terms of confidentiality of information as well as immunity from civil and criminal action.

The 1863 United States False Claims Act was one of the first laws meant to protect whistleblowers. Enacted during former US president Abraham Lincoln's administration, the act was targeted at catching dishonest suppliers during the American Civil War who would provide ill horses or faulty rifles and ammunition to the Union Military.

Under the act, whistleblowers are not only protected from wrongful dismissal, but also promised a percentage of the money recovered or damages won by the government.

The US have different types of legal protections for whistleblowers, depending on the subject matter and the state which the case arises.

The Lloyd-La Follette Act of 1912 allowed civil servants to furnish information to the US House of Congress and protects the whistleblower from “unwarranted” and “abusive” removal.

Employee protections were also introduced in several US environmental laws such as the Clean Water Act 1972, Safe Drinking Water Act 1974, Resource Conservation and Recovery Act 1976, Toxic Substances Control Act 1976 and the Clean Air Act 1990.

Under most of these laws, informers are accorded incentives and rewards.

The Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 authorises the US Securities and Exchange Commission (SEC) to reward those who divulge information on federal securities law violations at companies that are required to report to SEC.

The law also prevents employers from retaliating against whistleblowers by firing, demoting, suspending, harassing or discriminating them.

Similarly, the Public Interest Disclosure Act 1998 in the United Kingdom protects employees from detrimental treatment by their employers, such as dismissal or being passed over for promotion. If any employee feels he or she has a case, it may be brought before an employment tribunal, which can decide whether to award compensation or not.

Jamaica recently approved the Protected Disclosures Act 2011, which is modelled on UK's Public Interest Disclosure Act 1998.

Malaysia's Whistleblower Protection Act 2010 came into force on Dec 15 2010, and is part of the Government Transformation Plan (GTP)'s National Key Results Area (NKRA) to eliminate corruption.

Minister in the Prime Minister's Department Datuk Seri Idris Jala said the Act was developed on the best practices of the law in developed countries and following the success of its implementation in the United States and Europe.

Under the act, individuals who expose corrupt practices in the public and private sectors are promised confidentiality and immunity from criminal or civil charges.