The need for universal legislation on whistleblowing

    By ABDUL JABBAR BIN KARAM DIN

    The Business Times, 5 July 2019

    Whistleblowers expose information on wrongdoing and misconduct. Unlike other jurisdictions such as the United Kingdom, Australia and Malaysia which have general whistleblowing laws, Singapore protects whistleblowers via different pieces of legislation.

    The thinking seems to be that existing legislation provides adequate protection, when in fact, there are groups of whistleblowers who fall through the gaps.

    Statutory protection

    Most of Singapore's laws on whistleblowing protect targeted groups of informants.

    For instance, the Prevention of Corruption Act (PCA) protects those who report on corruption, while whistleblowers on the physical conditions, safety measures and hazards of a work environment are protected under the Workplace Safety and Health Act (WSHA).

    Under the Companies Act, auditors are protected from defamation suits as well as liability for reporting fraud in good faith. There is also separate legislation which covers specific whistleblowing on drug trafficking, financing of terrorism and competition matters.

    However, this patchwork of legislation is inadequate to address several segments of whistleblowers. For example, those who whistleblow on general wrongdoing or unlawful conduct in a workplace would not fall within the scope of “corruption” or “workplace safety”. This could include commonplace issues such as fraud, forgery, misappropriation of company funds, collusion and even theft. Both the PCA and WSHA would not apply in such situations.

    Similarly, employees who report workplace harassment would not be protected under existing legislation. The Protection from Harassment Act only criminalises harassment but does not protect informants. As such, employees who report their employers, supervisors and/or colleagues may still be subject to unfair repercussions.

    The Penal Code does offer general protection to all witnesses from retaliation or intimidation, whether or not in their capacity as informants. However, this does not fully provide assurance to whistleblowers who may require extra safeguards, such as the protection of anonymity. Provisions to recognise the value of anonymous whistleblowers and protect those who do identify themselves are found in most whistleblowing policies. The Penal Code does not but should require the identity of the informant to be kept confidential and redacted from court documents unless necessary.

    Other whistleblowing avenues

    Other than statutory protection, there are also measures put in place by organisations such as Singapore Exchange (SGX) and Accounting and Corporate Regulatory Authority (ACRA). SGX allows an individual to make reports via email, postal mail or phone calls. Similarly, ACRA allows members of the public to lodge complaints against entities and public accountants under ACRA’s purview.

    However, SGX and ACRA exercise supervision over a limited group of stakeholders. SGX regulates those companies listed on its boards and private companies are out of its domain. ACRA does not handle complaints involving issues such as fraud and forgery, which it refers to the Commercial Affairs Department under the Singapore Police Force.

    Currently, whistleblowing on workplace issues is more commonly dealt with under an individual company’s whistleblowing rules. The Code of Corporate Governance requires companies to publicly disclose and communicate to its employees the existence of a whistleblowing policy. The Code however does not have the force of the law, which means that there is nothing to compel companies to give effect to these whistleblowing policies, even if they are in place. More importantly, the Code applies only to listed companies, and a substantial proportion of companies are not obliged to execute any measures or policies on whistleblowing.

    Even for listed companies, the level of protection accorded to whistleblowers by different companies may be inconsistent. While some do develop strong policies, there are others which discourage whistleblowers from being anonymous. Provisions in relation to protection from wrongful dismissal can also be worded vaguely, leaving the issue to the discretion of management.

    A need for universal legislation

    A general whistleblowing law in Singapore can help plug the gaps highlighted above.

    In the United Kingdom, the Public Interest Disclosure Act protects workers who make “protected disclosures”, including information relating to criminal offences, non-compliance of any legal obligation and miscarriages of justice. In Malaysia, the Whistleblower Protection Act encourages disclosures on corruption related activity, such as abuse of authority, illegality and mismanagement.

    A universal legislation on whistleblowing can cover various types of improper conduct, and allows for a unified approach towards protection of whistleblowers.

    An example would be an anti-discriminatory provision to prohibit employers from terminating an employee’s contract of service because he or she has made a report against the company. In Australia, the Corporations Act protects whistleblowers from civil or criminal litigation for protected disclosures. This is important as whistleblowers may fear being made liable for defamation or breach of confidentiality.

    Whistleblowing is a valuable tool in detecting and deterring crime. It should not be seen as something shameful or disloyal. Instead, it can be used to encourage good corporate governance and behaviour. Equally, all whistleblowers who make their reports in good faith should be protected by the law, without fear of reprisal.

    A general whistleblowing law will help send the right signal, extend the influence of this useful platform and encourage people in using whistleblowing as a channel to report wrongdoing.

    The writer is a member of the Professional Development Committee of the Singapore Institute of Directors.