Whistleblowing and various regulations in the Middle East
"Without strong watchdog institutions, impunity becomes the very foundation upon which systems of corruption are built. And if impunity is not demolished, all efforts to bring an end to corruption are in vain." - Rigoberta Menchú, Nobel Prize laureate
Understanding Whistleblowing:
Whistleblowing is an act wherein the public or the authorities are informed of an illegal activity taking place in an organization. It is also called good faith reporting. It is an act of drawing the attention of the public or authority to exhibit an unethical activity which may either be illegal or immoral.
Janet P. Near and Marcia P. Miceli has defined the term 'whistleblowing' in Organizational Dissidence: The Case of Whistle-Blowing (Vol.4, No.1-1985) as the following-
"...the disclosure by organizational members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action."
Since the term does not explicitly lay down the list of activities which are to be included, the scope of the term is broad, and it may consist of any pursuit which is unlawful as per the jurisdiction of the deciding state. Examples include- fraud, safety violation, health violation, misconduct, exploitation, discrimination, etcetera.
'Janet P. Near and Marcia P. Miceli' in their case study on whistleblowing has also explained the concept of whistleblowing through a four-step process, and it may be described as the following:
- The identification of the wrongful act.
- The act of reporting.
- The response of the organization towards shutting Article 33 (Protection of reporting persons) down the reported activity.
- The response of the organization towards the whistleblower.
The activity being reported or informed may be such that it may be taking place or has already taken place. In general, whistleblowing consists of two types namely-
- Internal whistleblowing
- External whistleblowing
Internal whistleblowing is a kind of whistle-blowing wherein a person provides the information within the organization whereas in the case of external whistleblowing the information is reported by a person outside the organization involved.
The person who informs the authorities or the public of the illegal activity is called a 'whistleblower.' Since they are the ones who report the information, they often face retaliation from the accused. Once the whistle is blown, they are at the risk of being affected and may undergo reputational and other severe damages. It is for this reason that whistleblowers must be protected and therefore the safety of whistleblowers is highly recognized throughout the world and is a matter of high priority for the legal system. At present, most nations have formulated and adopted policies for the protection of whistleblowers.
International Position on the Concept of Whistle Blowing:
There has been an increase in the acknowledgment of, and considerable importance has been given to the notion of whistleblowing. The need for the establishment of a whistleblower policy is to prevent fraud and unethical activities within an organization and to secure a better institutional culture thereby increasing efficient management and transparency.
Before the development of the protection of whistleblowing, whistleblowers were not very well recognized or accepted, hence, they were treated as traitors. Now, the standpoint against whistleblowers is more optimistic. Countries around the world are working on formulating policies for the protection of whistleblowers. Most signatory states to the United Nations have ratified and adopted the United Nation Convention against Corruption (UNCAC). The convention provides for promoting anti-corruptive activities within the public and private sector, and the protection of whistleblowing is also covered under it.
The International Labour Organization (ILO) defines whistleblowing as:
"The reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers."
However, since protection of whistleblowing is a developing concept in law, it is not easy for the countries to implement a strict policy on whistleblowing.
The United Nation Convention against Corruption (UNCAC) mandates member countries to adopt legal provisions for the protection of those who report corruption and other related offenses from reprisal.
Article 33 (Protection of reporting persons), provides for the following whistleblower protection:
"Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offenses established in accordance with this Convention."
In Europe, the Civil Law Convention on Corruption is an agreement which came into force in 2003, and it deals with preventing corruption amongst the member nations. Article 9 of the convention specifically lays down the provision on the protection of whistleblowers;
"Each Party shall provide in its internal law for appropriate protection against any unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities."
The Organization for Economic Co-operation and Development is an international organization which is established to promote international trade and stimulate the economy. The organization also focuses on maintaining anti-corruptive practices and good governance. In 2003, The Council made a recommendation on the guidelines for managing conflict of interest in public services. The guidelines aim to make recommendations to member countries in accordance with their political, administrative, and legal framework. Get in touch with one of our law firms in Dubai or connect with our team of lawyers in Abu Dhabi for more information.
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