How restricting whistleblower protection undermines corruption investigations

The Center to Combat Corruption and Cronyism (C4 Center) strongly questions Prime Minister Anwar Ibrahim’s comments in the Senate on 16 December on planned amendments to the Whistleblower Protection Act 2010 (WPA) early this year.

According to Anwar, the WPA shall undergo another set of amendments to differentiate between “genuine whistleblowers, who must be defended and protected” and “hardened criminals” who seek to hide behind the law.

If this distinction means that whistleblowers who participated in the alleged corruption do not receive any protection, C4 Center strongly disagrees with the proposal.

This approach will only hamper anti-corruption efforts, as individuals implicated in wrongful conduct will have no reason to come forward with valuable information that may only be available to them.

To be clear, this does not mean that such individuals should receive blanket immunity or unconditional protection. However, all whistleblowers – regardless of involvement in alleged wrongdoing – must receive some level of protection under the law.

Furthermore, Anwar’s statement seemingly contradicts his own administration’s amendments to the WPA earlier last year, which enables enforcement agencies to maintain protection for whistleblowers who participated in alleged wrongdoing under Section 11(1A).

Encourage all whistleblowers to come forward

Corruption is difficult to tackle because it occurs in secretive and sophisticated ways. Without information, it is near impossible to even initiate charges against corrupt suspects, let alone secure convictions.

Projek Sama’s recent report Do Politicians Still Get Away with Corruption after 2018? notes that of 28 cases of corruption, criminal breach of trust, and money laundering involving current or former elected representatives, 10 were disposed of through withdrawal of charges by prosecutors, 11 were still ongoing either through trial or appeal, and only one resulted in a conviction.

This is why whistleblowers are essential to the fight against corruption, even if there is a level of involvement in wrongdoing. Without insider information, anti-corruption efforts will inevitably struggle. No one is closer to that information than individuals who may themselves be implicated in wrongdoing.

This does not mean that such individuals should receive blanket immunity or unconditional protection. There can and should be degrees of protection and accountability.

However, Anwar’s approach of pre-emptively categorising whistleblowers based on moral judgment or alleged culpability fundamentally misunderstands how corruption is exposed in practice.

By signalling that those with any involvement risk being denied protection, the proposed amendments would deter disclosures, silence critical sources and ultimately weaken Malaysia’s anti-corruption framework rather than strengthen it.

The purpose of whistleblower protection laws is to encourage people to come forward with information, regardless of intent or involvement.

International standards prioritise whistleblower information, not intent

According to Anwar, whistleblowers must be “distinguished from criminals or corrupt individuals who attempt to take cover under the guise of being whistleblowers”.

This view does not align with international standards.

According to Resolution 10/8 of the 10th session of the Conference of States Parties to the United Nations Convention against Corruption, good faith ought to be interpreted as the reporting person’s reasonable belief that the reported information is true, regardless of personal reasons that may be behind the report.

This means it does not matter what the intent of a whistleblower is when reporting. The focus should not be on the criminal culpability of any individual, but on the information they hold.

Albert Tei and the Sabah Scandal

Anwar also criticised an apparent ‘confusion’ among the public, who glorify those who commit corruption as whistleblowers. Here, Anwar was most likely referring to the Sabah mining scandal and whistleblower Albert Tei.

Public outcry on this matter should not be taken as exalting Albert or his alleged conduct in this scandal. Instead, the focus should be on the political leaders implicated in the corrupt acts, according to his information.

To date, besides Albert himself, only two Sabahan assembly members and Anwar’s former political secretary Shamsul Iskandar Akin have faced criminal charges in court.

In fact, without Albert’s information these scandals would never even have come to light. Is that the preferable outcome?

If the Anwar administration insists on taking such a hardline stance on tackling crime, there should be consistency in the application of the law. Why is it that the person who came forward with information on corruption gets punished, while so many of those he exposed face zero consequences?

Instead of focusing on the reputation of certain whistleblowers, Anwar should be focusing on the information they have to offer.

Recommended measures

C4 Center reiterates that a whistleblower’s involvement in wrongdoing may affect the level of protection they receive, and this can be reflected in law.

However, it is a misguided approach to completely deny any level of protection if an informant was involved in the improper conduct. Without providing people an opportunity to protect themselves, what incentive is there for whistleblowers to come forward?

After all, the new Section 11(1A) introduced to the WPA expressly empowers enforcement agencies to confer protection upon complicit whistleblowers if deemed necessary.

Anwar’s statement here seems to have disregarded his own administration’s actions. Will persons who wilfully participate in improper conduct be conferred protection or not?

We agree that despite several amendments to the WPA earlier last year, the statutory framework for whistleblower protection in Malaysia remains inadequate.

To truly facilitate disclosures of improper conduct and encourage whistleblowers to come forward, C4 Center recommends the introduction of the following:

• A tiered policy of protection for informants: Clear guidelines must be introduced to determine who may qualify for protection under Section 11(1A).
• Expanded disclosure channels: Currently , whistleblowers only receive protection if they make disclosures to enforcement agencies.
• Improved physical protection: The WPA only provides whistleblowers “protection of confidential information”, “immunity from civil and criminal action” and “protection against detrimental action”. The government should consider anticipatory physical protection from reprisals.
• Inclusion of support services: At present, the WPA fails to place any obligation upon the government to provide or facilitate access to legal or psychological support services for whistleblowers, which must be remedied.
• The repeal or amendment of laws: This should cover laws that inhibit disclosure of improper conduct, such as Section 203A of the Penal Code and the Official Secrets Act 1972.

– Center to Combat Corruption & Cronyism (C4 Center)

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