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Who Blew It? An Analysis of the Historical Background and Global Perspective of Whistleblowing

This research paper explores the historical background of whistleblowing, tracing its origins to 7th-century England with the concept of "qui tam." It delves into the American Foundation of Whistleblowing, highlighting Benjamin Franklin's early acts of whistleblowing and the establishment of the False Claims Act in 1863. The paper further discusses the Indian adaptation of whistleblowing laws, including the Public Interest Disclosure and Protection of Informers Resolution (PIDPIR) and the Whistleblower Protection Act of 2014.

Additionally, the paper examines the state of whistleblowing laws in Dubai and South Africa. It analyzes Dubai's Law No. 4 of 2016, which offers limited protection for whistleblowers and explores the legal landscape in Africa, where only a few countries have legislation specifically protecting whistleblowers.

The research paper concludes by emphasizing the need for a comprehensive and uniform whistleblowing law that ensures the protection of whistleblowers worldwide. It highlights the importance of anonymous reporting, robust safeguards, and proper mechanisms for rewarding legitimate whistleblowers and punishing malicious complainants. The paper also proposes a reference template for a comprehensive whistleblower policy, covering aspects such as defining whistleblowers, reporting procedures, investigation protocols, protection measures, and anonymity provisions.

Whistleblower - Cambridge Dictionary Meaning[1]
A person who tells someone in authority about something illegal that is happening, especially in a government department or a company

Whistleblower Policy
The organisation allows freedom to their employees to speak up against any illegal, unethical, or immoral work to the management, ensuring that this act of theirs would not have any consequence for themselves.

History Of Whistle-Blowing

Inception[2]
Whistle-blowing can be viewed as a century-old concept, which took its birth in the 7th century in England with the terminology "qui tam" a shortened form of the phrase from Latin which translates as to "he who prosecutes for himself as well as for the King". Modern lawmakers got associated with the term synonymous with whistleblowers and made use of it.

American Foundation
America's road to achieving a fully functional Whistleblowing law had a bumpy track with some pauses justifying its late coming. The act of whistleblowing was first observed when the founding father of the country Benjamin Franklin made public Several letters that revealed that the royal governor of Massachusetts deceived the Parliament on purpose to support the militarization of the colonies. in the year 1773.

The adaptation of whistleblowing lain in modern laws during the 18th century when American states started using "qui tam" rulings, but this faded until the end of the 19th century, was not there but its re-emergence post civil war, to curb the ongoing war profiteering and exposing the corrupt defence contractors selling defence equipment's to the armed forces and with this came the birth of False Claims Act.

False claims Act
On March 2nd, 1863, congress passed the False Claims Act in which the realtors, if had knowledge about the scam and had been given permission to sue a contractor on the government's behalf, and on successful lawsuits, the plaintiff got entitled to receiving half the money recovered by the government. This Act was made with the belief that even paying the whistleblowers half the amount would save the government a huge part of its treasury and help them uncover the large fraudulent schemes.

The Act itself experienced a decrease throughout the years of World War II due to unnecessary lawsuits filed in lieu of the reward given and by the end, the US Congress opted to abolish the prize and these cases, resulting in the vanishment of further cases for the next forty years.

The Amendment to False Claims Act
In the year the 1980s, the time of the cold war between the US and the USSR, which resulted in defence spending as defence build-up was the priority for the government. Instances of wasteful spending and corporate abuses were getting highlighted and the government changed the False Claims Act in 1986 as a result, by restoring original incentive provisions and establishing additional, more robust safeguards for whistleblowers.

The amendment also increased the penalties for the government against the companies which defrauded them to at least triple what was before. In 1996 the Act was used to prosecute private companies for the first time in the case of Franklin v Parke-Davis

How India Got Into Whistleblowing Laws[3]

It all started with a recommendation of the Law Commission of India in 2001 for enacting a law which would protect whistleblowers and eliminate the rising corruption in the country, but no work was put in by the government at that time until the Supreme Court instructed the federal government to put in place administrative measures to address complaints. of the whistleblowers till they enact a law for it.

In 2004, a resolution known as the Public Interest Disclosure and Protection of Informers Resolution (PIDPIR) was adopted as a result the Central Vigilance Commission had the authority to respond to complaints made by whistleblowers.

With time, whether it was the report from the Second Administrative Reforms Commission proposing the creation of a specific law to defend Whistleblowers or other reasons, India being the signatory of the UN Convention against Corruption which calls on states to make it easier to denounce public official corruption, to protect witnesses and experts from reprisals, and to protect the complaint.

So to conform to all these regulations India proposed Whistleblowers Protection Bill in the year 2011, which then became law in 2014.

Whistleblower Protection Act, 2014
A procedure for filing complaints regarding the disclosure of allegations of corruption or deliberate abuse of power made against any public person has been established under this Act. It offers protection from the victimisation of the complainant. Anyone is allowed by law, even public personnel, to express a public interest before a competent authority.

Landmark Cases of Whistleblowers in India[4]
Satyendra Dubey: [5]
One of the earliest whistleblowers of India whose revolution led to them being a part of the formation of the Whistleblower's Protection Act in the Country.

Satyendra Dubey was a project manager for the Indian Engineering Services (IES) who was appointed to the National Highway Authority of India. Handling the Aurangabad-Barachatti section of the NH2, a part of the "Golden quadrilateral Project" at Koderma in Jharkhand. He bought into due to the project's operation's financial issues, which resulted in the suspension of three contractors.

Dubey was shot dead on his way to Gaya when he was returning from Varanasi from a wedding. He knew the fate of exposing the truth in the country and the price one could have to pay for it but he still went ahead fearlessly by having faith in the system, but the system failed him by not keeping his name anonymous as pleaded by him.

Shanmugam Manjunath:
A marketing manager working for the Indian Oil Corporation (IOC) in Uttar Pradesh's Lakhimpur Kheri. He uncovered the corruption going on in two petrol pumps in the district which were selling adulterated fuel, and he then made both shutdown and sealed. There were also surprise raids conducted on the pumps when they started operating again illegally after a month. He took the courage to stand up for what was right and had to bear the consequences for it also, Manjunath was killed by six gunshots in the town of Gola Gokarannath in Lakhimpur Kheri.

Sanjiv Chaturvedi
An Indian Forest Service (IFS) Officer of the 2002 cadre, filed a complaint against contractors working on the building in his very first appointment. He accused the contractors of illegal tree cutting and hog deer poaching in the nearby Saraswati natural reserve at Hansi Butana Canal. He was then appointed the Chief Vigilance Officer (CVO) for the AIIMS and within days of his deployment, he detected scams going place there.

As a result of this attitude, Chaturvedi was shifted to various districts of states and exposed high-level government officials, ad took action against the doctors who were travelling abroad without authorization. During his administration, the police were able to recover drugs worth six crores that were being supplied by an on-campus pharmacy that belonged to a Congress MLA.

The quandary with the Indian law
The bill was formed in 2011 and the act got passed by the parliament in 2014, even after 8 years of enactment the act is working without any amendments being made to it.

To start with, the Act does not clarify or waylay in its statutes any standard for the victimization of the whistleblowers, the repercussions of which have to be borne by them and their families. The clause of not accepting anonymous complaints makes it difficult for the whistleblower to come clean on somebody due to their safeguard and with the history of the conditions of whistleblowers being revenged with murder and transfers, it makes it difficult for them to uphold the sanity of truth by sacrificing themselves.

The American Whistleblowing law provides adequate safeguards for the whistleblower and further allows them to do anonymous complaints, their mechanism of rewarding the whistleblower for exposing the wrongdoer and punishing them for malicious complaints goes a long way in promoting whistleblowers to be upfront.

Therefore with amendments, the problems with existing Indian laws can be removed and can be proved to help facilitate whistleblowers.

Laws In UAE [6]
UAE despite being a developed country and increasingly characterised as an Economic Hub does not explicitly define whistleblowing as a mandate of law as it has traditionally been a less common practice there. Until recently Dubai did not even protect whistleblowers but the introduction of "Dubai law no. 4 of 2016," is a remarkable attempt of taking a step towards protecting whistleblowers.

Dubai law no. 4 of 2016
The Financial Crime Law protects whistleblowers in cases where the disclosure is true in fact and is relating to potential conduct that could compromise Dubai's financial stability, provided that the complaint is made at the Dubai Centre for Economic Security.

The law goes someway in protecting against the prosecution of whistleblowers but is still relatively narrow in scope and is consequently unlikely to inspire the potential customer with confidence for whistleblowers to come up-front and represent their standing, but organizations based in countries with whistleblowers reforms would undoubtedly benefit from the strengthened rule of law

Scenario In Africa [7]
The rules within Africa for doing business are primarily governed by the OHADA laws, which is a system of business law and implementing institutions adopted by seventeen Western and African nations. The OHADA law does not expressly protect the whistleblowers and so the whistleblowers have to be anonymous for their protection.

There are a total of 54 countries in Africa but out of that only 7 according to the UN Organisation on Drugs and Crime, legislation protecting whistleblowers has been passed. (UNODC). Those Seven Countries are South Africa, Ghana, Rwanda, Uganda, Zambia, Kenya and Liberia

Although Ghana has one of the toughest whistleblower laws on the continent, neither anonymous reporting nor the punishment of efforts at retaliation is now allowed. Nigeria, the greatest economy in Africa, on the other hand, has no laws protecting whistleblowers and exclusively protects state personnel., same happens with South Africa which does hold a law for whistleblowers but has some major loopholes which need rectification.

Conclusion
The countries of the world are still sceptical about adopting a whistleblowing law for themselves, with some countries[8] like Australia, New Zealand, Japan, and the UK having overarching protection for employees who blow the whistle, rather than countries who provide employment law like Colombo, Singapore and Chile, have specific employment laws for the protection of employees who report certain wrongdoings even though there is no overarching whistleblowing legislation present.

Even the countries having uniform laws now are not up to the mark for the protection of whistleblowers, some do not allow their citizens to make anonymous complaints making it hard for people by bringing them into the limelight, and others don't have an established mechanism stating as to how would they provide the needed safety and security to the whistleblower, making it a demotivating factor for the whistleblowers to unveil the truth.

Therefore the need for a uniform dedicated whistleblowing law for the protection of whistleblowers is the current need of the hour for the world to adopt, with the rise in the development of businesses and organizations and the increasing power of the corporates in the important decision-making makes it necessary to protect those who are courageous enough to speak against the wrongdoing for the pristine growth of the world.

Reference Template Of The Whistleblower Policy
  • Defining Whistleblower
    The policy starts with interpreting the meaning of who a person should be considered a whistleblower and in what circumstances.
     
  • Purpose
    The need and requirement for which the enactment of a whistleblower policy
     
  • Scope
    We get to know about the people who are covered in this policy through this clause
     
  • Reportable conduct
    Define the conduct which is inappropriate, illegal, or Unethical and report them.
     
  • How to Report
    Establishing a procedure as to the approach needed to be taken to report the conduct and the authorities who should be contacted.
     
  • Investigation Procedure
    The way ahead for the complaint and how will it be investigated by the organization by following the due procedure instated
     
  • Protection
    This clause clarifies and states assurance among the employees of the organization as to how will they be protected from legal action, Detrimental Conduct, and confidentiality when there is an arousal of complaint and the times when the due procedure is being followed.
     
  • Anonymity
    The document should define the company's policy as to how well the anonymity of the complainant would be maintained.

End-Notes:
  • Whistle-Blower, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/whistle-blower (last visited Jun 10, 2023).
  • WBI, C. (2022) The history of whistleblowing in America, Whistleblowers International. Available at: https://www.whistleblowersinternational.com/what-is-whistleblowing/history/ (Accessed: November 16, 2022).
  •  Drishti IAS (no date) Not found, Drishti IAS. Available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/whistleblowers-protection-act (Accessed: November 16, 2022).
  • Here are 10 whistleblowers, who fight against corruption despite several odds (2017) IndiaTimes. Available at: https://www.indiatimes.com/news/india/here-are-10-whistleblowers-the-solitary-warriors-who-fight-against-corruption-despite-battling-several-odds-321918.html (Accessed: November 16, 2022).
  • Wangchuk, R.N. (2018) An IES officer from IIT, this Bihar Braveheart's battle against corruption cost him his life, The Better India. Available at: https://www.thebetterindia.com/163087/satyendra-dubey-iit-whistleblower-vajpayee-news/ (Accessed: November 16, 2022).
  • Whistleblower protection in the UAE: New developments (2020) Al Tamimi & Company. Available at: https://www.tamimi.com/law-update-articles/whistleblower-protection-in-the-uae-new-developments/ (Accessed: November 16, 2022).
  • Fr´┐Żhlich, S. (2022) The high price of truth: Africa's whistleblowers -DW -03/16/2022, dw.com. Deutsche Welle. Available at: https://www.dw.com/en/africa-whistleblowers-pay-high-price-for-truth/a-61146475 (Accessed: November 16, 2022).
  • Whistleblowing across the Globe (2021) Ius Laboris. Available at: https://iuslaboris.com/insights/whistleblowingacross-the-globe/ (Accessed: November 16, 2022).

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