Providing an Alternative to Silence:
Towards Greater Protection and Support for
Whistleblowers in the EU
COUNTRY REPORT: MALTA
This report belongs to a series of 27 national reports that assess the adequacy of whistleblower protection laws of
all member states of the European Union.
Whistleblowing in Europe: Legal Protection for Whistleblowers in the
EU, published by Transparency International in November 2013, compiles the findings from these national
reports. It can be accessed
at www.transparency.org. All national reports are available upon requ
est at xx@xxxxxxxxxxxx.xxx.
Responsibility for all information contained in the report lies with the author. Views expressed in the report are
the author’s own, and may not necessarily reflect the views of the organisation for which they work.
Transparency International cannot accept responsibility for any use that may be made of the information
contained therein.
The project has been funded with support from the European Commission. The sole responsibility lies with the
author and the Commission cannot be held responsible for any use that may be made of the information
contained therein.
With financial support from the Prevention of and Fight against Crime Programme of the European Union.
European Commission – Directorate-General Home Affairs
Providing an Alternative to Silence:
Toward Greater Protection and Support for
Whistleblowers in the EU.
Country Report Malta
Björn Rohde-Liebenau (xxx@xxxxxxxxxxxxxxxxxx.xx)
1. Executive Summary
The small island Republic of Malta, EU member since 2004, has introduced
whistleblowing legislation in the revised Employment and Industrial Relations Act
(EIRA of 2002). Its Article 28 is titled “Victimisation.” Under this provision
victimisation of employees who report illegal or corrupt activities of their employer or
their representatives are illegal. Victimisation cases would be heard by the Industrial
Tribunal with a chairperson sitting alone, Art 30 (3) EIRA. If so requested and satisfied
with the merit of a claim, according to 30 (2) EIRA the Industrial Tribunal would be free
to take such measures as it may deem fit and would normally order the payment of
compensation for losses and damages sustained by the aggrieved party as a consequence
of the illegal victimisation. At the same time, the Department of Industrial and
Employment Relations would be in a position to institute criminal proceedings against
an alleged perpetrator.
Victimisation therefore includes at least the infliction of losses and damages to an
employee in relation with the reporting of illegal employer behaviour to competent
authorities. Published cases of victimisation have not been found in the course of
research for this study.
There is also an Ombudsman working under the Ombudsman Act of 1995, who under
Sec. 13 of that law has the power to investigate in his own discretion, or, after a
complaint to him and if he so chooses, most actions by most public bodies in their
administrative functions, as specified in Schedule 2 of the Act. If in the course of an
investigation, a complaint is discovered to have been warranted, the Ombudsman is
called to inform the head of the department or administration concerned of his findings
and recommendations and if reasonable reactions do not follow within reasonable time,
the Ombudsman may inform the Prime Minister of the Republic and afterwards the
Parliament.
Since at least 2006, Parliament and public have further discussed the issue of
whistleblowing. This eventually led to a 2010 proposal by the ruling Nationalist Party of
an Act „Protection of the Whistleblower.“ The Bill has been due for a second reading in
Parliament in October 2012 which elapsed. Numerous public statements in favour of the
Bill from the Government side since its presentation seem insufficient, to have it actually
voted on. Numerous candidly critical statement from the Parliamentary Opposition have
not led to an opposition proposal. In the meantime, however, general budget issues and
the next elections have taken centre stage and the Bill is almost certainly shelved until
more serious political will arises.
This country report analyses the current legal status quo as well as the proposal for its
merits. The 2010 Government draft profits from a broad definition of whistleblowers in
both the public and the private sectors, even including volunteers in volunteer
organisations. The protected disclosure needs to be based on good faith and reasonable
belief in the truth of the reported information. This information needs to qualify as
tending to show a defined „improper practice.“ For a disclosure to be protected, it may
not be made for personal gain. The proposal calls for the function of an internal
“whistleblowing reporting officer” to be installed by every employer, public or private.
On a second tier, whistleblowers from the private sector may report to a handful of
specified public bodies, whistleblowers from the public sector report to Corporate
Governance Committee within the Cabinet Office. These office will establish
“whistleblowing units”, but each only for specific subject matters and reasons.
Under this proposal retribution for whistleblowing is not permitted, except for measure
which are „justifiable on the basis of performance“; or, „administratively or
commercially justifiable.“ Also, confidentiality is largely under the discretion of the
receiving officers. Anonymous reports may be investigated but they are not considered
“protected disclosures.” Fines for any breach of the Protection of the Whistleblower Act
reach up to 1,200 € and/or 3 months of incarceration.
2. Compilation, description and assessment of relevant laws
Maltese law is based on Roman Law principles, yet influenced by other legal systems, in
particular by English Common Law. Thus much of Maltese commercial law has British
roots, while financial services and large parts of administrative regulations are now based
on European Union directives.
Malta had been a British Colony for more than one and a half centuries, and only
became a Republic in 1974. Thus the laws of the Public Service were also based on
British principles. A new Public Administration Act (2009) now accompanies a
consolidated private sector Employment and Industrial Relations Act (2002). Both are
obviously relevant for the subject of whistleblower protection.
The current Prime Minister1 has been in office since 2004, standing for early re-election
in March 2013. Nationalist (conservative) Party Governments have continuously been in
power for about 20 years. In 2006 the Tonio Borg2, then Home Affairs Minister, declared
a specific law on whistleblowing to be “not indispensable”, because there were “enough
laws giving immunity to whoever exposes corruption and other crimes“ in Malta.3
2.1. The 2002 EIRA anti-victimisation legislation
The one retrievable Maltese law specifically referring to persons who expose alleged
illegal or corrupt activities is the Employment and Industrial Relations Act (EIRA) of
2002. Under the title “victimisation” its section 28 stipulates the following:
28. It shall not be lawful to victimise any person for having made a complaint to the
lawful authorities or for having initiated or participated in proceedings for redress on
grounds of alleged breach of the provisions of this Act, or for having disclosed
information, confidential or otherwise, to a designated public regulating body, regarding
alleged illegal or corrupt activities being committed by his employer or by persons acting
in the employer’s name and interests.
Clearly this rule does not suggest to effect immunity (e.g. from prosecution). In itself it
cannot even shield from any sort of behaviour, though possibly sanction it retroactively.
The sanctioned behaviour is termed “victimisation.”
While the Act has a comprehensive section for definitions, the term “victimisation” is left
undefined. Article 29, immediately following within the same section, bears the title
“harassment.” Some of the harassment under Art. 29 is defined as a behaviour which
brings someone else into the position of a “victim” by offending, humiliating or
intimidating him or her sexually. While Art 28 and 29 are set up separately under
different titles, and should not be confused, both speak of victims. Since harassment
under Art. 29 is one particular activity which produces victims in the work space, a
victimisation under Art. 28 cannot be less or narrower than the activities sanctioned
1 Dr. Lawrence Gonzi of the Nationalist Party (Christian Democrats / Conservatives)
2 Later to become Foreign Minister and at the time of writing of this study designated EU
Commissioner for Health and Consumer Affairs
3 Quoted in MaltaToday from a Parliamentary Answer in Issue 338, of 30 April 2006:
http://www.maltatoday.com.mt/2006/04/30/t5.html
under Art. 29. It may therefore be assumed that acts constitute victimisation if they reach
or surpass the threshold of discriminating against a person by (generally) offending,
humiliating or intimidating him or her.
Either act of victimisation is treated as an offence according to EIRA Art. 32. The
maximum fine is € 2,329.37 and/or up imprisonment for up to six months. According to
the Maltese Ministry of Justice these sanctions prevail over other sanctions for
victimisation under the criminal code.4 The Ministry stresses that a breach of Art 28 in
itself “is first and foremost a criminal offence.” Criminal proceedings would be instituted
by the Department of Industrial and Employment Relations.
Harassment and victimisation are sanctioned equally under EIRA, however in these
cases the EIRA is subsidiary to other laws which may impose heavier sanctions, such as
the Criminal Code.
However, victimisation under Art. 28 is only sanctioned, if it is effectuated
-
for the “victim”having made a complaint to the lawful authorities or
-
for the “victim” having initiated or participated in proceedings for redress on grounds
of alleged breach of the provisions of this Act [EIRA], or
-
for the “victim” having disclosed information, confidential or otherwise, to a
designated public regulating body,
-
regarding alleged illegal or corrupt activities being committed by his employer or by
persons acting in the employer’s name and interests.
As to the first alternative, the most relevant authority to complain to is the Malta
Ombudsman, including its sub-section “Malta University Ombudsman.” The first
alternative therefore sanctions mainly retaliation for addressing the Ombudsman and
other complaint bodies. It is probably lawful (in the sense of “ not illegal,” not per se
prohibited) to make a complaint to any public authority. However, making a complaint
to the police or investigative bodies would arguably fall under the third alternative. The
second alternative will only be relevant for specific breaches of labour relations.
The third alternative explicitly refers to illegal or corrupt activities as object of reports.
Prima facie it provides a broad definition of whistleblowing subject matter, because it
simply requires
-
the disclosure of information;
-
regarding activities;
-
committed by the employer or someone acting for him;
-
alleged to be illegal or corrupt;
-
if this information is provided to a designated public body;
-
but regardless whether this information is confidential, or not.
At a closer look, this means, that acts of persons who are not employer (who usually is a
legal person) or one of its organs (acting in name and interest), cannot be subject of a
protected disclosure. Acts of colleagues are usually not protected object of a disclosure.
The stipulation needs to be construed in such a way that it suffices if these acting persons
usually have a role to act in the name and interest of the employer. Acts to be disclosed
will usually not be committed in the (true) interest of the employer. Therefore the
4 In a written reply to a number of questions posed to the Minister by the author of this study, sent by
the Ministry Policy Co-Ordinator, on Dec. 6, 2012.
stipulation would be void if understood to comprise only acts in the interest of the
employer.
However, the context of the law, Employment and Industrial Relations, as well as the
available procedures at the Industrial Tribunal, let it seem convincing that even
complaints under the first alternative of the law need to be related to employment issues.
Under alternative (3) disclosures are only protected if they are made to the designated
public body. Private bodies (e.g. the media) are clearly excluded, but probably also those
bodies which are not designated as recipients for this particular type of information –
which places a heavy burden on potential whistleblowers.
After having decided to complain, having made a complaint and thereupon feeling
victimised by the employer, other rights not withstanding, a person may then lodge a
complaint to the Industrial Tribunal. This “Industrial Tribunal,” according to EIRA Art
73 (2a) and (4) eventually will be an advocate of no less than seven years of experience
appointed by the Minister of Justice after consultation with the Malta Council for Social
and Economic Development. After hearing the complaint, the Industrial Tribunal would
be free to carry out „any investigations as it shall deem fit“ (Art 30 (1)).
In the ideal case – that is
-
if a complaint has been lodged for victimisation within the four months period after
the act stipulated in Art 30 (1) and
-
the case has been investigated “as deemed fit” by the Industrial Tribunal,
-
the experienced advocate acting as Chairperson of the Tribunal may or may not
decide that the employee’s rights were breached in such a way that he or she was
“victimised.” If they were breached by the employer, there may be sanctions of a fine
up to 2,329.87 € and/or 6 months incarceration.
Unfortunately, as the microscopic Permanent Commission against Corruption, the
generic investigator in Malta, who in the 25 years of its existence has confirmed but one
suspicion of coruption, there have been few compliants of victimisation under Art. 28. In
the words of the Ministry: “Since 2002, the Industrial Tribunal has never heard and
decided any cases alleging a breach odarticle 28 as such.”5 However, while the Ministry
assumes the issue could be resolved by raising awareness of the existing legislation and
institutions, above remarks ought to suffice to prove that the citizens are likely aware of
the general tone and effectiveness of this legal infrastructure, which forbids
whistleblowing.
Summing up, the claim of “immunity” for whistleblowers made by the former Maltese
Minister for Home Affairs seems unsustainable under the current legislation. Art. 28 may
be relevant for persons in labour relations, specifically employees complaining about
contraventions of the Employment and Industrial Relations Act itself; to some extent
also for complaints to public bodies about the illegal or corrupt behaviour of their
employers and/or employer representatives. While there are no (other) incentives for
such complaints and no protections against retaliation, in view of the maximum fine of
2,329,87 € sanctions of victimisation are marginal. Effectively, there is neither procedure
nor protection potential whistleblowers could rely on. Consequentially, no information is
available on any Industrial Tribunal decisions regarding an allegedly victimised employee
under EIRA Art 28.
5 In same Dec. 6, 2012 reply of the Ministry of Justice.
2.2 The 2009 Public Administration Act
The Public Administration Act of 2009 indirectly confirms the universal applicability of
EIRA Art. 28 in its own Articles 31 and 33.
According to Art 31 (1) Public Administration Act, a „Public Service Commission“ is
tasked to ensure within the limits of its powers under articles 33 and 34 of that Act, that
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no public officer is
victimised;
-
for making any report to his superior, to the Commission, or to another relevant
authority;
-
about any breach of the Code of Ethics or
of any other provision of this or
any other Act.
This provision shows that
-
public officers are permitted if not encouraged to report illegal and unethical acts
-
to the relevant authorities, their superiors, or the Public Service Commission.
If public officers decide to make such a report, they should not be victimised for it, and
the Public Service Commission should ensure that victimisation does not happen.
In relation to Art 28 EIRA this provision seems both special and subsidiary. Special,
because it only applies to public officers; subsidiary, because it does not limit what public
officers may do or expect under Art 28 EIRA, but additionally provides (only) public
officers with a legal instrument for the prevention of victimisation. Recourse to Art 28
EIRA still seems possible. What is “illegal” under Art 28 EIRA is even to be prevented in
the Public Administration by Art 31 (1) – within the limits of Art 33 and 34 Public
Administration Act.
Art 31 (2) goes even further by stipulating an obligation of the Public Service
Commission to give recommendations for redress to the Prime Minister, in case the
Public Service Commission was unable to prevent victimisation or provide redress of its
own device.
Art 33 (3) of the Public Administration Act limits the remit to matters which
have not
been assigned to the Industrial Tribunal. Since claims of (actual) victimisation
have been
assigned to the Industrial Tribunals, there is no competition between the EIRA and the
Public Administration Act, or the Industrial Tribunal and the Public Service Commission
for that matter. However, according to Art. 33 (3), further, the Public Service
Commission may investigate any actual or likely victimisation, when a formal complaint
has not (yet) been lodged. It may also follow up on the decisions of the Industrial
Tribunal and thus facilitate their enforcement. For the purpose of its functions (hearing
and investigating complaints, acting where no formal complaint has been lodged) the
Commission has powers partially like that of a Court (summoning parties, taking oaths,
requesting documents) and like the police (entering premises).
The Public Administration Act therefore constitutes an additional potential element
for the protection of public officers as whistleblowers. It does not in itself provide
additional or special rules on the act of whistleblowing as such.
2.3. Other existing laws
In many legal systems administrative laws, especially acts relating to health, safety and
the environment, contain a duty or a right to report, and from time to time protections for
those thus charged. One Maltese example of such regulations is the Occupational Health
and Safety Authority Act
6 Its Article 13 stipulates in sub-article 7
13 (7) Workers and the workers’ representatives may not be placed at a
disadvantage because of any activity taken pursuant to any matter relating
to the protection of occupational health and safety .
It seems that this rule is not supported by any reporting procedures. On the contrary, the
preceeding clauses clearly reduce workers to a passive role. Neither are there sanctions,
nor a body or authority responsible for ensuring protection.
This should be seen as a gap, which a (new) law on whistleblowing should fix. The
Ministry confirms that there are no provision granting immunity to whistleblowers in
Maltese Labour Law. However, such provisions should be expected in Criminal Law.
Apart from dubious rules regarding a pardon, there seems to be another gap. The
“pardon” (for “crown witnesses”) has recently been discussed publicly, when the Prime
Minister granted his Pardon to a witness (and allegedly participant) of corruption and
procurement fraud (ENEMALTA). It has been questioned how far such a pardon goes
(certainly no further than specific criminal sanction and not civil law damages), and
whether such a pardon should be granted by the President or by Parliament rather than
the Prime Minister – of a Government whose Minister might also be involved in the
alleged dealings.
2.4. The 2010 NP Draft Bill7 “Protection of the Whistleblower”8
Despite its declared dispensability, in 2010 the governing Nationalist Party introduced a
proposal for a Bill “Protection of the Whistleblower” and promised to enact it with
priority.9 On several occasions, the Labour opposition, has vowed to promote effective
legal protection for whistleblowers by way of a new law10 – thereby incidentally declaring
the existing law to be ineffective11 and the Government draft to be inacceptable.12While
these mutual intentions have been debated and reiterated on several occasions, they seem
to preclude collaboration on the issue. The most recent media reports raise doubt about
any further steps before the next elections, which need to be called before October 2013.13
6 CAP. 424,
LN 36 (2003)
http://justiceservices.gov.mt/DownloadDocument.aspx?app=lp&itemid=18311&l=1 7 The 30 bi-lingual pages of this 2010 draft of a Bill N. 58 have been made available for download at
the
Archives
of
the
Maltese
Department
of
Information:
http://www.doi-
archived.gov.mt/en/bills/2010/Bill%2058.pdf
8 The title in Maltese is "(DWAR IL-PROTEZZJONI TA’ MIN JIŻVELA INFORMAZZJONI LI TKUN
PROTETTA can literally be translated about as follows: „on the protections of those who disclose
information to be protected“)
9 As declared 2010 by the Prime Minister in several public statements, as reported in Malta Today of
21 September 2010 „VIDEO | Government moving to enact Whistleblowers Act - Lawrence Gonzi“
10 with news reports dating back at least to 2006, the last one being recorded on 27 Oct. 2012:in Malta
Today „Joseph Muscat promises whistleblower act“
11 so, explicitly, Hon. Helena Dalli (shadow minister for public administration) in a 02 Sept. 2009 Malta
Star article: „Urgent need for Whistleblower and Disclosure Acts“
12 Former Labour Prime Minister Alfred Sant is quoted in a Malta Today headline of 28 Nov. 2010
„Whistleblower’s Act is ‘Bul shit’
13 Art.22 states clearly that the Act will not have retroactive applicability – which has occasionally been
presumed as one reason for continuous postponement. However, the Prime Minister at one point
declared, the Law would be fully retroactive, so that this point may still be fluent, in Malta Today, 30
The aim of the 2010 draft,14 was to provide procedures for employees in the private and
the public sector for disclosing information regarding improper practices by their
employers or other employees of their employers, and to protect employees who make
said disclosures from detrimental action.
In the notable absence of any other drafts, the Bill “Protection of the Whistleblower” can
be tested against its promise
-
to provide procedures for employees for disclosing information regarding improper
practices in their workplace; and
-
to protect those who make such disclosures,
and then, in how much this complies with TI benchmarks. The draft contains an Art 2
(3) excluding the “disciplined forces” and the “Secret Service” from its applicability until
the Minister of Justice has set up rules to which extent the Bill may be applicable.
2.4.1. Procedures for Disclosure
Part III of the Bill deals with disclosures, starting in Section I with the definition of a
protected disclosure. Sections 2 and 3 provide routes for internal and external disclosures.
As for the internal disclosures, Part III, Section 2, Art. 12 obliges every employer,
completely independent of size or form to identify at least one person within the
organisation, to whom a protected disclosure may be made. The draft refers to this
person as the “whistleblowing reporting officer.” Internal procedures, which every
employer, according to the Act, must have in operation, must state how the
whistleblowing reporting officer receives information about improper practices and then
deals with it, so that the purpose of the Act is met.
According to Art 12 (2) information about the existence of the internal procedures, and
adequate information on how to use the procedures must be published widely within the
organisation and must be republished at regular intervals.
Art 12 (3) establishes that internal disclosures are a protected disclosure only if they are
made substantially in the manner established by the employer’s internal procedures.
Additionally, according to Art. 11 anonymous disclosures are not protected. Still, if the
whistleblowing reporting officer decides to receive such a report, as he may under Art 11
(2) his regular obligations apply – including the protection of the identity of the
whistleblower according to Art. 6.
Art. 14 provides a secondary internal reporting channel to the head or deputy head of the
organisation, if the prescribed reporting procedures do not exist, have not been published,
or for specific reasons it seems inappropriate to report to the internal reporting officer.
Art. 15 incidentally defines (external) disclosures to certain public institutions as
protected, if the whistleblowers has previously made the same disclosure internally, or
has previously attempted to do so.
Art. 16 provides exception for cases in which a whistleblower may address the external
institution directly. If the whistleblower reasonably believes
-
the head of the organisation to be involved in the improper practice,
Sept. 2010, PM unveils Whistleblowers Act, announces anti-corruption 'special investigator',
http://www.maltatoday.com.mt/en/newsdetails/news/national/PM-unveils-Whistleblowers-Act-
announces-anti-corruption-special-investigator 14 according to its introduction as wel as its “Objects and Reasons” stated at the end of the draft
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the urgency or other exceptional circumstances justified the immediate reference to
the external body;
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that he will be subjected to an occupational detriment by his employer if he makes an
internal disclosure;
-
that in case of an internal disclosure evidence may be concealed or destroyed;
-
after an internal disclosure in a lack of action, or a lack of information on the
employer’s part.
Routing external disclosures from the public sector is simple: there is only one address:
the Corporate Governance Committee within the Cabinet Office. For disclosures from
the private sector there are five such public institutions enumerated exhaustively in the
Schedule to the Bill. They each have their own exclusive remit in subject matter, but one
of them, the Ombudsman may be approached with anything that has not been assigned
to one of the other institutions. While the subject matter description for some of them
may arguably be abstract enough to send prospective whistleblowers into limbo. it is clear
enough that the three financial regulators listed are the recipients for disclosures with a
financial background, whereas the Permanant Commission Against Corruption is
certainly tasked with corruption issues – and the Ombudsman with everything else.
Fortunately, according to Art. 18, one agency may refer a disclosure to the more
appropriate one, without risking the status of protection.
If the external recipient deems an external disclosure to be inappropriate, according to
Art 16 (4) it has to inform both the whistleblower and the internal whistleblowing
reporting officer of the necessity to make an internal disclosure.
Finally, internal rules or private agreements, according to Art 21, will be void, if they
attempt to derogate the protections granted under this Act, or gag the potential
whistleblower.
2.4.2. Protection from Detrimental Action
Part II of the draft protects from detrimental action, essentially by prohibiting it. Part IV15
sanctions the prohibition.
Starting with the latter, while the act contains a number of obligations and prohibits, Part
IV, Art 19, defines it as an offence to compel another person to doing or to abstaining
from any act which the other person has a legal right to do or to abstain from doing
under this Act. If there is a no legal justification for compelling the other and if this is
done using enumerated forms of violence, including stalking and trespassing, this person
is guilty of an offence and liable to pay a fine not exceeding € 1,200 (one thousand two
hundred!) and/or a maximum of three months in prison – unless punishable more
severely under any other law. Such other, stricter law could be the Employment and
Industrial Relations Act, which sets up penalties twice as high, albeit for a differently
defined offence.
So, if the sanctions seem to have a rather narrow applicability and arguably
correspondingly narrow added value, what about the rules regarding the prohibition of
dretrimental action ? Art 3 straightforwardly prohibits any person to be subjected to
detrimental action on account of having made a protected disclosure. Importantly this
15 This Part is titled „Offences and Penalties“ and consists only of Art. 19
shall be so despite any other rules or laws restricting the disclosure of information. The
only exceptions shall be the ones in the (draft) Act.
Art. 4 is difficult to understand, because, on the hand, it grants immunity to
whistleblowers from any civil, criminal or disciplinary proceedings for having made a
protected disclosure, whilst on the other, this shall only be so „notwithstanding the
provisions of the Criminal Code or any other law. This clause therefor cannot be
understood as a broad grant of immunity but rather as the opposite: the whistleblower
needs to be aware that he or she remains fully liable for anything under any law, except
that he cannot be persecuted for the protected disclosure as such – if then it is made in a
protected way.
This is further clarified in Art. 5, according to which a whistleblower who has become a
perpetrator or involved as an accomplice to the “improper practice” (which is obviously a
much broader construct than an act alone) will be subject to criminal proceedings. Art 5
(2) explicitly states that there is no immunity from liability arising from own conduct.
Similarly, under Art 6 (1) the receiving side of the disclosures (whistleblowing reporting
officers or whistleblowing units) theoretically may not disclose information which may
lead to the identification of the whistleblower, UNLESS
-
the whistleblower consented in writing; or
-
the receiving side REASONABLY BELIEVES THAT DISCLOSURE OF THE
IDENTITY OF THE PERSON MAKING THE DISCLOSURE
-
IS ESSENTIAL TO THE EFFECTIVE INVESTIGATION,
-
IS ESSENTIAL TO PREVENT SERIOUS PUBLIC RISKS,
-
IS ESSENTIAL HAVING REGARD TO THE PRINCIPLES OF NATURAL
JUSTICE;
-
IS NECESSARY FOR THE PROSECUTION OF THOSE RESPONSIBLE
FOR AN IMPROPER PRACTICE:
While these cases literally and objectively may be relatively rare, and while they need to
be construed narrowly – as exceptions; the requirement merely of a “reasonable belief”
means effectively that there are no bounds for the disclosure of the identity in any case
and at any time.
However, the communication, internally or with other public or private institutions, is
restricted under Art 6 (2) and (3). Typically any communication will only be permitted,
once the investigations have been concluded. If heeded, this will protect the identity of
the whistleblower to some extent, while it may be complicating some investigations.
Art. 7 grants a full day in Court, Art 7 (6) even waives registry fees for the person who
reasonably believes to be subject of detrimental action. While Art. 7 only mentions orders
and injunctions against the person who caused the detrimental action (will that ever be
the employer?), there is nor reason to assume other charges under regular civil procedures
to be precluded. Insofar Art 8 only states the obvious: anyone who may have suffered
detrimental action as a result of making a protected disclosure, may claim compensation
for any damage caused. This clause clearly lays the burden of proof for all facts justifying
the claim upon the whistleblower, in particular for the causation of the damage and that
the detrimental action was a result of making a protected disclosure.
Finally, Part 1 of the Bill contains mainly definitions, some straightforward, some a bit
surprising. “According to Art. 2, occupational detriment, for example, is defined in such
a way, that it strongly influences the function of “whistleblower protection.” Thus being
suspended, demoted or dismissed is not a detriment in the sense of the Bill if
“administratively or commercially justifiable fo organisational reasons.” Same for
transfers and promotions. Similarly, being refused a reference or being provided with an
adverse reference is not considered a detriment, as long as it is “justifiable on the basis of
performance.”
2.5. The 2012 Partit Laburista Views
The Parliamentary opposition formed by the Labour Party16 has called for effective
whistleblower protection at least since 2006. The latest such call was voiced by the
current Party Leader, Joseph Muscat, in a statement of 28 October 2012, emphasising the
intent to quench political corruption by such measures, at a time when Malta was
irritated by the demission of its EU Commissioner, John Dalli. The causa Dalli does not
seem fit as a test for appropriate whistleblower legislation, because at the time of writing
of this study, it is still extraordinarily unclear, who set out to corrupt whom for which
purpose, and who caused whom to interfere by which means and to which final aim. On
top of that, the Labour opposition has not come public with its own proposal. Therefore
neither testing nor benchmarking is possible. However, the Dalli intricacies may serve to
set up a list of minimum requirements and desiderata for a democratic political culture to
counter political corruption and restore trust in democratic governance:
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a personally accounted for, conclusive, continuously updated list of lobbying contacts of
political deciders (Parliament, Government, Administration) on the international (EU,
UN etc.), national and regional level, which needs to be publicly available (e.g. on the
internet);
-
a similar list of all their extra sources of income (if any);
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a list of all known active parties and/or their associations or lobbyists who are possibly
affected by pending legislation, accounted for by the head of the administration or other
public service;
-
a moderated forum to discuss information on these lists publicly or privately (risk
communication, or non-escalated “whistleblowing”) with the purpose of making publicly
accounted for suggestions to make alterations/amendments/deletions or re-
interpretations to these lists;
-
a prohibition to earn income in markets affected by the political decision making upon
leaving the public office and for a reasonable time afterwards (e.g. four years); this
prohibition should include contracts through middlemen as well as indirect rewards such
as for public speaking, book contracts etc.
-
therefore also a duty to lay open assets before during and after holding public office, as
well as to lay open non-public sources of income for a certain period of time after leaving
public office;
-
a Freedom of Information Act and a Freedom of Information infrastructure facilitating
the reciprocal information rights of the public;
-
a duty of heads of governments, Parliamentary groups and administrations to react upon
receipt of information regarding the respective duties;
-
fair and effective reporting channels if relevant information or input into these systems
may not have been used in a fully compliant manner. These channels need to include by-
passes in a tiered system modelled after the tiers of the UK Public Interest Disclosure Act,
16 Malti Partit Laburista
which eventually facilitates external reporting wherever it may make a difference,
including to the media.
3. Perceptions and political will
The current situations is viewed as ambiguous. While some contest the need for more
whistleblower protection, others are frustrated with the practical lack of any substantial
protection under the current legal practice. Regarding popular attitudes to whistleblowing
legislation an opinion reported in The Times of Malta of Friday, April 18, 2008,17 titled
“Deterring corruption” may be taken as representative: “Almost 70 per cent of those who
voted in this week's online poll at timesofmalta.com believe that a Whistleblower Act
will deter corruption and abuse, and I guess any other illegal act. Unfortunately, this is an
ingenuous interpretation of reality. Laws do not ensure deterrence. Only the court
sentences and penalties would. Being consciously illegal in their acts does not discourage
criminals. Stricter laws may force them to exercise more caution and diligence.“
Generally and for obvious reasons, whistleblowing cannot be observed on a regular basis
in Malta. Four recent prominent cases may be worth mentioning, all of which would be
considered atypical internationally. A 2012 case involved alleged conflicts of interest and
undeclared business interests of the Maltese member of the OLAF supervisory board.
The 72-year old whistleblower was arrested and his assets frozen for about 48 hours. A
2013 case quickly led to a Prime Ministerial Pardon for a person involved in alleged
energy procurement corruption. Then there is the former auditor of the Environmental
Protection Agency, who was eventually left without staff and virtually without budget
after criticising zoning and building permits. Finally a Nationalist Back Bencher
frequently made the headlines in 2012 reminding the Government (and his own Party) of
promises, all concerning Good Governance, Party Financing and Anti-Corruption. He
was denied the opportunity to challenge the coming elections on a Nationalist Party
ticket, while his substantial complaints never received a satisfactory response.
Under the strict two-party system and with a governing party in power for about twenty
years, many seem to suspect that corruption is rife and unavoidable,18 even in the Justice
system, but in any case in Party Politics.19 There have been 13 indicted cases of
corruption in the Ministry of Transportation.20 Many politicians have been accused of
corruption – rhetorically – habitually not in Courts.21 However the Permanent
Commission against Corruption, established 1988, has experienced but a smal, yet
further dwindling number of reports and hence investigations.22 Former EU
Commissioner Dalli was cleared of such allegations years ago and once again believes to
be a victim of entrapment as he was forced to resign from the Commission. GRECO has
criticised anti-corruption policies and institutions in Malta, and in particular party
17 by George Caruana
18 Matthew Vella, online editor of Malta Today, in „Corruption in Malta unavoidable – blame business
and politics,“ 15 Feb 2012
19 Hon. Dr. Helena Dal i „Political connections rule over meritocracy“ quoted in the Times of Malta, 24
March 2011
20 „13 accused of bribery at Austin Gatt’s Ministery“, Malta Star 29 Oct 2012
21 In „Institutional corruption vs corruption“, The Times of Malta, Friday, August 3, 2007,
http://www.timesofmalta.com/articles/view/20070803/opinion/institutional-corruption-vs-
corruption.9274 ex-Trade Union leader Michael Seychell writes “despite rampant corruption involving
millions of liri during the 1970s and 1980s, the only person accused of corruption was a whistleblower
who had himself informed the police he had to bribe a minister to obtain an import licence!”
22 one per year of late, with a total of about 400 in all the years and supposedly less than a handful of
confirmed corruption cases.
financing. A prominent politician of the governing Nationalist party insists on the
resignation of the Minister of Transportation and has requested to see the Party
finances.23 These are alleged to be doted by entities profiting from successful public
tenders.24
The Prime Minister has explicitly shifted25 his support towards more effective
legislation.26 His Government’s proposal has been tabled since 2010. However, invisible
powers seem to keep it from being voted on. The Parliamentary opposition (Labour) has
made a promise for effective whistleblower protection as a measure to counter political
corruption.27
A major public criticism against the Government proposal is the fact that it hasn’t been
enacted in years.28 However it is also rightly feared that the new proposal could act as a
trap for whistleblowers. In fact, while some of the clauses in the Act are quite promising,
others are forbidding. Those who have read the proposal carefully, inspite of its title,
would come to doubt whether the intention of the law was actually the protection of
whistleblowing (or whistleblowers) – or rather to protect information from
whistleblowers.
The proposed law takes a commendably neutral approach at “whistleblowing” by using
the Maltese word for disclosure (“vela”) and to disclose (jiżvela). Others have argued that
in Maltese there is the word denunzjatur for whistleblower and denunzja for
whistleblowing, or akkużatur and akkuża.29 Without explanation or translation, it will
seem obvious to the English reader that neither accusing (or complaining) nor
denouncing fit what is meant by the term “whistleblowing.” If these words are used in
spite, it shows a lack of understanding for the necessary contribution of whistleblowing.
Unfortunately, the intention of the draft law are as ambiguous and difficult to analyse as
the diverse interest in the Dalli Saga.
As a footnote, it should be noted that a rather early whistleblower was of Maltese origin:
Stanley Adams who reported Roche vitamin price fixing schemes to the European
Economic Community.30 Swiss authorities arrested him as a spy. His wife committed
suicide, when she was told that her husband could face a 20-year jail term for industrial
espionage. After serving a few months in a Swiss prison it took him more than 10 years
in European Courts to eventually get some compensation.
4. Strengths, weaknesses and recommendations
Even the current legal situation in Malta has some strong and even commendable
elements. Illegal and corrupt behaviour can be reported internally or to the authorities
and victimisation is illegal. Generally all employees should benefit from this rule (EIRA
23 Franco Debono quoted in Malta Star „They want war, they wil have it.“ 03 Nov. 2012
24 Wild al egations of a „donors“ list fueled by cash donations and the idea that only donations from
non-members and only above 10.000 € per donation should ever be published.
25 „shifted“ in so far as the current law had just been passed by the previous Nationalist Party
Government in 2002, and the Home Affairs Minister of the current Prime Minister had declared in
2006, that more whistleblowing protection was dispensable.
26 Lawrence Gonzi 2010
27 Joseph Muscat, Oct. 2012
28 crystallised in comments by the third largest Maltese party, Alternativa Demokratika
29 Fr. Edmund Teuma in a letter to The Times of Malta, 5 Aug. 2008
30 His fate and the lessons learned were represented in some detail by the former Novartis Chief
Ethics Officer and UNGC chief executive Klaus M. Leisinger in his book „Whistleblowing und
Corporate Reputation Management, Hampp, München, 2003“
Art 28). Even a National Ombudsman exists. However, victimisation is only illegal, if the
victim can prove that the victimising acts have been performed for reason of his/her
reporting. There is also a clear lack of guidance in procedures – which can only be
guessed. More should be expected of the Public Service Commissions –obviously
exlusively applicable to members of the public service. Here, the Commission can get
active and investigate even before a formal report or complaint has been made. There is a
direct route for recommendations to the Prime Minister. However, sanctions under the
current law cannot be taken seriously. Unfortunately they shall be halved according to
the proposal of separate Whistleblowing Law (maximum fine 1,200 €, three months
prison).
Again, this draft bill (proposed in 2010) excells in its broad definition of whistleblowing
and who is included. It also offers to other countries the worthy obligation for every
employer to name a “whistleblowing reporting officer” and to publish rules of procedure.
Some limited form of external reporting also exists. Unfortunately, the draft effectively
permits any sort of “victimisation” as long as there are other good reasons for it. It also
permits making the identity of the whistleblower public, as long as the receiving officer
“reasonably believed” in the necessity to do so. This and the quasi non-existent sanctions
for breaches put the draft in serious doubt. In the end, this draft improves some aspects of
the current situation, actually the ones that are already acceptable or better, but worsens
other aspects in a way that renders the whole exercise useless. Most individual
Transparency International benchmarks are clearly missed, the overall grade would be a
clear “fail.” This much said, it seems even more deplorable that the Labour oppositon,
while promising to enact a Whistleblowing Act once in Government, has not yet
published its own proposal. The hesitation of the Nationalist Government to enact (its
own) proposal might serve the good cause of whistleblowing better than a future Labour
Government actually enacting a law qualified by its senior leadership as clearly
defective.31
SWOT I (current law)
Strengths
Weaknesses
EIRA anti-victimisation clause
no
credible
protection
of
applies to public and private sector
whistleblower;
alike.
unclear,
or
non-existent
Public Service Commission with
procedures.
far reaching powers in informal
procedures.
Opportunities
Threats
Political will declared by both
Small community may render idea
parties on numerous occasions;
of anonymity illusionary;
Upcoming elections may bring
Small agencies (one or two
renewed
enthusiasm
for
an
professional staff) effective ?
improved proposal;
Professional Secrecy Act of 1994
Freedom of Information Act
far reaching and setting the tone;
should also be in preparation stage;
Media sources not protected in case
31 cf. Alfred Sant as in fn. 12 above
Prominent cases of corruption,
of “national interest;”
money laundering and nepotism
may be frustrating enough to
strong party loyalties in two-party
system.
induce change.
SWOT II (PN Draft)
Strengths
Weaknesses
broad definition of whistleblowers;
no
credible
protection
of
confidentiality;
Strong message in need to define
“whistleblowing reporting officer”
no effective protection at all.
for every employer.
Opportunities
Threats
Political will declared by both
both major Parties seem reluctant
major
parties
on
numerous
to present anything to be voted on;
occasions;
100% burden of proof with
Upcoming elections may bring
whistleblower;
renewed
enthusiasm
for
an
improved proposal;
any protection whatsoever ONLY,
if whistleblower can show that
Prominent cases of corruption,
disclosure followed all internal
money laundering and nepotism
rules and the law;
may be frustrating enough to
induce change.
sanctioning limits may send all the
wrong signals.
5. References and Sources
Bibliography:
Klaus M. Leisinger, Whistleblowing und Corporate Reputation Management, Hampp, München, 2003
Visited websites:
Government:
http://www.doi-archived.gov.mt/en/bills/2010/Bill%2058.pdf
http://gov.mt/en/Government/Publications/Pages/Publications.aspx
http://gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Officially%20Appoin
ted%20Bodies/Pages/Tribunals/Industrial-Tribunal.aspx
http://justiceservices.gov.mt/
https://mjdf.gov.mt/en/MJDF/Justice/Pages/Permanent-Commission-Against-Corruption
Media:
http://www.independent.com.mt
www.maltastar.com.mt
http://www.maltatoday.com.mt/
6. Charts
A view of the current situation in regard to whistleblowing under Maltese Employment and Industrial Relations Act
(2002)
Yes
No
Partial
Notes
Broad definition of
X
disclosing
alleged illegal or corrupt activities being
whistleblowing
committed (or breach of EIRA)
Broad definition of
X
any person … having disclosed information … regarding activities by
whistleblower
… or in the interest … of his employer …
Broad definition of
X
„unlawful to victimise“
retribution protection
Internal reporting
X
no specific procedures
mechanism
External reporting
X
seems to address primarily complaints to “designated public bodies,”
mechanism
however, no provisions, e.g. to “designate” public body
Whistleblower
X
participation
Rewards
X
system
Protection of
X
confidentiality
Anonymous reports
X
accepted
No sanctions for
X
unclear
misguided reporting
Whistleblower
X
Ombudsman exists, but unclear if Ombudsman is a „designated
complaints authority
body,“ or what constitutes a what constitutes a „designated body
Genuine day
X
Under general procedures only
in court
Full range of
X
Under general procedures only
remedies
Penalties for
X
Under general procedures only
retaliation
Involvement of
X
Under general procedures only
multiple actors
Proposal: „IL-PROTEZZJONI TA’ MIN JIŻ VELA INFORMAZZJONI LI TKUN
PROTETTA | (THE PROTECTION OF THE WHISTLEBLOWER ACT, 2010 PL
Proposal )
Yes
No
Partial
Notes
Broad definition of
X
Part III Sec.. 1 Art 9. Protected disclosure based on good faith and
whistleblowing
reasonable belief in truth of information and that it tends to show
„improper practice“ (defined); but not for personal gain.
Broad definition of
X
definition includes former employees, contractors and their employees
whistleblower
and volunteers in Volunteer Organisations
Broad definition of
X
exception for measure which are „justifiable on the basis of
retribution protection
performance“; or, „administratively or commercially
justifiable“
Internal reporting
X
Internal „Whistleblowing Reporting Officers“ and „Whistleblowing
mechanism
Units“
External reporting
X
To a small number of agencies and the ombudsman for specific subject
mechanism
matters and reasons
Whistleblower
X
Certain duties to inform whistleblower form a minimal basis for
participation
external whistleblowing
Rewards
X
system
Protection of
X
Art. 6 Unless receiving officer reasonably believes that identity
confidentiality
disclosure is essential for investigations, to prevent serious risks or in
regard to natural justice... or the disclosure is necessary for the
prosecution ...
Anonymous reports
X
Art: 11; accepted, and duties of „whistleblowing reporting officer
accepted
persist“ but disclosure not considered „protected disclosure“
No sanctions for
X
Knowingly false reporting punishable under Art 101 Criminal Code
misguided reporting
(Part III, Sec. 1, Art 9 (3) of the draft)
Whistleblower
X
Dedicated internal and external reporting destinations, but not a
complaints authority
separate authority for whistleblowing
Genuine day
X
Court with preliminary and final measures, against the acting person -
in court
to stop detrimental action, Art. 7; and against those who caused
damage (e.g. the employer) for full compensation of any damaged
caused (Art. 8)
Full range of
X
Industrial Tribunal and informal complaints handling, First Hall for
remedies
preliminary and final legal measures; then Court of Instance;
Penalties for
X
up to 1.200 € and/or three months in prison (other sanctions under
retaliation
different laws notwithstanding)
Involvement of
X
By way of a broad definition of whistleblowers
multiple actors
7. Annex 1 (Legal Material)
A. Employment and Industrial Relations Act (EIRA 2002)
28. It shall not be lawful to victimise any person for having made a complaint to the lawful authorities
or for having initiated or participated in proceedings for redress on grounds of alleged breach of the
provisions of this Act, or for having disclosed information, confidential or otherwise, to a designated
public regulating body, regarding alleged illegal or corrupt activities being committed by his employer
or by persons acting in the employer’s name and interests.
29. (1) It shall not be lawful for an employer or an employee to harass another employee or to harass
the employer by subjecting such person to any unwelcome act, request or conduct, including spoken
words, gestures or the production, display or circulation of written words, pictures or other material,
which in respect of that person is based on sexual discrimination and which could reasonably be
regarded as offensive, humiliating or intimidating to such person.
(2) It shall not be lawful for an employer or an employee to sexually harass another employee or the
employer (hereinafter in this article referred to as "the victim") by: (...)
30. (1) A person who alleges that the employer is in breach of, or that the conditions of employment are
in breach of articles 26, 27, 28 or 29, may within four months of the alleged breach, lodge a complaint
to the Industrial Tribunal and the Industrial Tribunal shall hear such complaint and carry out any
investigations as it shall deem fit.
31. Subject to the foregoing, the Minister may, after consultation with the Board, prescribe regulations
to give better effect to the provisions of articles 26, 27, 28 and 29 and in particular for the elimination of
any discriminatory practices in the employment or in the conditions of employment of any person or
class of persons, for providing equal opportunities of employment for classes of persons who are at a
disadvantage and to regulate access to the Industrial Tribunal and investigation and hearing by the
Industrial Tribunal of complaints of alleged discrimination, breaches of the principle of work of equal
value, victimisation or harassment.
32. Any person contravening the provisions of articles 28 and 29 shall be guilty of an offence and shall
be liable on conviction to a fine (multa) not exceeding two thousand and three hundred and twenty-nine
euro and thi rty-seven cents (2,329.37) or to imprisonment for a period not exceeding six months, or to
both such fine and imprisonment.
B. Public Administration Act
31. (1) The Public Service Commission shall ensure, in so far as its powers under articles 33 and 34 of this
Act (as extended to the public service under article 30) permit, that no public officer is victimised for
making any report to his superior, to the Commission or to another relevant authority about any breach of
the Code of Ethics or of any other provision of this or any other Act.
(2) Where the Public Service Commission finds that a public officer has been victimised as aforesaid in a
manner that it is unable to prevent or redress, it shall make a report to the Prime Minister or to other
authorities recommending such measures to redress the situation as it considers appropriate.
32. In addition to its functions under any other law the Public Service Commission shall act as a Merit
Protection Commission (in this Title referred to as the “Commission”) for the purposes of this Act.
33. (1) Subject to subarticle (3), the functions of the Commission shall be:
(a) to audit the appointment of employees of government agencies and government entities to verify that
these are made in accordance with article 21;
(b) to monitor and suggest amendments to directives and guidelines on employment matters issued by the
Principal Permanent Secretary in relation to agencies and government entities, as well as the application of
such directives and guidelines; and
(c) unless otherwise catered for in the legislation, Order or instrument setting up the government entity,
agency, board or commission or any other similar organisation or body, to inquire into reports that the
directives issued by the Principal Permanent Secretary have not been adhered to.
(2) In performing its functions in virtue of paragraph (a) of subarticle (1) the Commission shall operate
through after-the-event scrutiny and shall not subject any agency or government entity to any requirement
to obtain the Commission’s clearance or approval in advance of making appointments or taking decisions,
except as a temporary measure in cases where the Commission —
(a) finds that the provisions of this Act have been, or are likely to be, breached; and
(b) is of the view that such a measure is necessary to prevent further breaches of this Act until such time as
the Commission is able to conclude any investigations and take corrective measures.
(3) The Commission shall not hear and investigate complaints on matters which are assigned exclusively by
any other law to any other body or to the jurisdiction of the Industrial Tribunal referred to in the
Employment and Industrial Relations Act, and if any such complaints are made to the Commission it shall
refer the complainants to the Tribunal; but in relation to such matters the Commission may—
(a) on its own initiative inquire into and investigate any cases with respect to which no formal complaints
have been raised; and
(b) follow up a decision or award of the Industrial Tribunal with a view to taking additional remedial
action under paragraph
(c) of subarticle (4) and subarticle (5) of article 33 of this Act.
(4) The Commission shall regulate its own procedure in the discharge of its functions under this Act.
34. (1) For the purposes of its functions under this Act the Commission may:
(a) carry out such inspections and investigations as it may deem necessary;
(b) summon any person to appear before it and give evidence
on oath;
(c) request in writing the production of information, documents or files in the custody of any public
employee for the purpose of examining the same or making copies thereof; and
(d) enter the premises of any agency or government entity, subject to compliance with any legal
requirements placed by any law on the police for the same purposes.
(2) Article 6 of the Inquiries Act shall apply to the investigations undertaken by the Commission and any
summons or requests it may make in pursuit thereof.
(3) Without prejudice to subarticles (4) and (5) and article 34, the Commission’s findings may be used in
evidence in any civil cause that may be filed by the injured party but, notwithstanding any other law, the
members of the Commission cannot be called to give evidence.
(4) The Commission shall make a report to the Prime Minister following every investigation under this Act,
and where it finds that an employment decision has been made otherwise than in conformity with the a)
annul the decision in question;
(b) issue such directives as it may consider necessary to redress the situation; and
(c) recommend the taking of such disciplinary or criminal action as it may consider appropriate in the
circumstances.
(5) Without prejudice to any disciplinary or criminal action that may be taken in accordance with
paragraph (c) of subarticle (4), where an employee of a government agency or government entity has made
an employment decision that is not in conformity with the provisions of this Act the Commission may
remove the employee from his position and/or interdict him from appointment or re-appointment for a
maximum period of five years.
(6) Notwithstanding the provisions of any other law, the decisions taken and directives issued by the
Commission under paragraphs (a) and (b) of subarticle (4) and under subarticle (5) shall be binding on the
organisation to which they apply, and the board of directors or head of the organisation as applicable shall
ensure that the Commission’s decisions and directives are complied with.
(7) The Commission shall, as soon as possible after the conclusion of each year of its activity, make an
annual report to the Prime Minister about its workings during the said year, and the Prime Minister shall,
as soon as possible after he has received the said report, lay it on the Table of the House of Representatives.
C. Draft Bill “Protection of the Whistleblower”
The 30 bi-lingual pages of this draft Bill have been made available for download at:
http://www.doi-archived.gov.mt/en/bills/2010/Bill%2058.pdf
also: Government Gazette of Malta No. 18,654 of 08 Oct 2010