The provincial cabinet in its meeting chaired by Chief Minister Pervez Khattak on July 31 gave approval to the proposed Khyber Pakhtunkhwa Whistleblowers Protection and Vigilance Act 2015. It is likely that the bill will be tabled in the provincial assembly in its ongoing session.

While the provincial government has yet to make public the draft of the proposed law so as to receive input from the stakeholders, including civil society and legal experts, it claims that it is aimed at providing a mechanism for receiving complaints related to corruption and misuse of office and to provide for safeguards against victimisation of the whistleblowers or complainants.

In a press briefing, information minister Mushtaq Ghani stated that the proposed law envisaged setting up of a vigilance commission, which would comprise of a chairman and two other members. The proposed commission will be empowered to initiate an inquiry on information provided by a whistleblower against any person, department or authority and will put forward recommendations for taking appropriate action against the concerned official if the information proved to be correct.

Mr Ghani said that the vigilance commission would be empowered to receive assistance from the officials of any department and it would also be authorised to hire services of an expert on the relevant subject. He added that the whistleblower would be awarded commendation certificate and given 30 per cent of the amount of fine.

Under the proposed law the name of a whistleblower should be kept secret and if anyone disclosed his or her name he would be fined.

Also, if any whistleblower was found intentionally giving false information against an official he would be fined up to Rs100,000.

Prior to this proposed legislation the present provincial government had also included a provision related to whistleblower in the Khyber Pakhtunkhwa Access to Information Act 2013. Section 30 of the said Act provides that no one may be subject to any legal, administrative or employment-related sanction, regardless of any breach of a legal or employment obligation, for releasing information or wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in reasonable belief that the information was substantially true.

So far there is no law available on federal or provincial level on whistleblowers’ protection. Pakistan is a signatory to the UN Convention against Torture, which was adopted by the General Assembly on Oct 31, 2003. Pakistan ratified the convention on Aug 31, 2007.

The said convention also makes it obligatory on the states to include in their legal system measures for providing protection to the persons reporting regarding corruption.

In South Asia, Bangladesh and India have already enacted comprehensive laws on whistleblowers protection. In Bangladesh the law “Public-interest Information Disclosure Act 2011” was enacted by the parliament in 2011. Similarly, in India the “Whistleblowers Protection Act 2011” after its passage by the parliament received consent of the President on May 9, 2014.

In the Indian law Section 15 provides for penalty for furnishing incomplete or incorrect or misleading comments or explanation or report to the competent authority, whereas Section 16 provides for penalty for revealing identity of a complainant (whistleblower). If the competent authority is of the opinion that the organisation or official concerned has not furnished the report within specified time or refused to submit the report or knowingly give incomplete, incorrect or misleading of false report or destroyed record or information which was the subject of disclosure, it shall impose a penalty, in case of delay in submission of record, which may extend to Rs250 for each day till report is furnished, and where incorrect or misleading information is given it could impose penalty up to Rs50,000.

Furthermore, under Section 16 any person who negligently or with mala fide intentions reveals the identity of a complainant shall be punishable with imprisonment for a term which may extend up to three years and also to fine which may extend up to Rs50,000.

Similarly, the law in Bangladesh also provides for protection to the whistleblowers, stating that if any whistleblower discloses any authentic information his identity could not be disclosed without his consent. Moreover, for making disclosure of public interest information, no criminal or civil, or, where applicable, departmental suit can be filed against the whistleblower.

Section 10 of the law also envisages punishment for a whistleblower for disclosing false information.

Compared to South Asia, in the US protection to the whistleblowers is available in several laws on central as well as on States level. The protection from workplace retaliation includes any adverse action against workers including: Firing or laying off, blacklisting, demoting, denying overtime or promotion, failure to hire or rehire, denial of benefits, intimidation/harassment, making threats, reducing pay or hours, etc.

Legal experts believe that before enactment of the law, it should be presented for public debate so as to remove flaws, if any, from the draft. The provincial government has to introduce foolproof measures for providing protection to the whistleblowers besides ensuring that the proposed law should not be misused by filing frivolous or baseless complaints against an officer or department.

Published in Dawn, August 3rd, 2015

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