The Khyber Pakhtunkhwa Assembly on Sept 19 unanimously enacted ‘The Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act, 2016,’ taking lead over the federal government as well as other three provinces in making a law on the subject.

The law is aimed at setting up a Whistleblower Protection and Vigilance Commission (WPVC) so as to encourage citizens of the province to make public interest disclosures related to corruption and corrupt practices and to protect such citizens from disadvantageous measures.

The bill in this regard was introduced in the assembly on Oct 5, 2015 and was referred to the select committee for consideration on Nov 17, 2015. The committee was chaired by Chief Minister Pervez Khattak. The said bill was discussed by the committee and subsequently a revised bill was drafted and placed before the committee on Aug 30, 2016. The committee suggested changes to the revised bill and subsequently a final bill was referred to the assembly.

Earlier, the provincial government had enacted ‘Khyber Pakhtunkhwa Right to Information Act 2013’ to ensure transparency in the functioning of government departments. In that law the government had also included a provision regarding whistleblowers.

Section 30 of the RTI 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.

The present law defines a whistleblower as a person or an agency, who discloses the public interest information under this law.

The law envisages setting up of a WPVC comprising three commissioners to be appointed by the government for three years. The Act provides certain qualification for the commissioner, including that he or she should be a citizen of Pakistan and permanent resident of Khyber Pakhtunkhwa; is honest and a person with good character; is minimum of 45 years of age; has a Bachelor’s degree and had at least 15 years experience in the field of law, or professional of high repute from civil society or has remained a public office-holder for at least 20 years; is not a defaulter of government dues; etc.

The said commission is empowered to initiate an inquiry on the pointation of a whistleblower against any person, department or authority and will put forward recommendations for taking appropriate action against the concerned official if the information provided by the whistleblower proved to be correct.

The WPVC shall ensure that no whistleblower is victimised by disadvantageous measures or otherwise merely on the ground that such whistleblower had made a public interest disclosure or rendered assistance in inquiry under this law. It is provided that if a whistleblower is being subjected to disadvantageous measures he may file an application before the commission seeking redress and the commission may pass an appropriate order giving direction to the authority concerned.

Experts believe that certain changes made in the initial bill and passed by the assembly had reduced the scope of this law. The bill initially introduced in the assembly provided vast information which could be considered as Public Interest Disclosure (PID).

Initially, in the bill it was provided that PID means any declaration of information by an individual or by an agency who reasonably believes that such information may prevent action that infringes or is likely to infringe the health and safety of the public, the environment, consumer interests, fair competition; or, an action that of corruption and corrupt practices; or, an action that tends to show that a criminal offence or other unlawful act has been committed or is likely to be committed; or an action that may lead to the occurrence of miscarriage of justice.

However, the select-committee removed several of the sub-sections from the initial bill and now in the law passed by the assembly PID only includes information aimed at preventing an action of corruption and corrupt practices.

The law also carries provisions related to rewards and penalties. It is provided that after inquiry, if it has been proved that a whistleblower has rightly disclosed the violation of public interest he shall be rewarded 30 per cent of the recovered amount and certificate of appreciation.

After inquiry if it has been proved that the whistleblower has lodged frivolous or mala fide complaint, he shall be liable to a fine of 30 per cent of the actual amount claimed against a person with rigorous imprisonment for a three years; provided that the amount of the fine shall be paid to the person against whom the complaint has been made.

In the initial bill, it was provided that in case of a frivolous complaint by a whistleblower he shall be liable to a fine of Rs100,000.

In the Act the punishment for frivolous or mala fide complaint is made so rigorous that it would discourage citizens from coming forward and making Public Interest Disclosure. It would be responsibility of a whistleblower to provide evidence of a wrongdoing and not that of any government agency.

The enactment of this law is in line with the UN Convention against Corruption (UNCAC), which was adopted by the UN General Assembly in 2003 and was ratified by Pakistan on Aug 31, 2007. The Convention makes it obligatory on the member states to include in its legal system measures for providing protection to the persons reporting regarding corruption.

Legal experts believe that there are already many anti-corruption bodies in the country as well as in the province and creating another commission for looking into information related to corruption and corrupt practices would further complicate the issue. Presently, the National Accountability Bureau, Federal Investigation Agency, KP Ehtesab Commission and KP Anti-Corruption Establishment have been looking into corruption cases in the province.

Published in Dawn September 26th, 2016