The Protected Disclosures (Whistleblowers’) Bill 2021

The Protected Disclosures (Whistleblowers’) Bill 2021

A “Necessary” but not “Sufficient” Condition

The Protected Disclosures (“Whistleblowers’”) Bill, 2021, once enacted into the laws of Belize, would be a landmark piece of legislation that could yield grant dividends in the fight against corruption. Regardless of the country, there is always a need for there to be a system in place that would enable whistleblowers to confidently and securely “blow the whistle” on corruption and “improper conduct” in both private and public sectors.

In our opinion at the Belize Chamber of Commerce and Industry (BCCI), this type of law is long overdue, and we applaud the government for taking this first step.

Now, of course, it is worth reminding a law is only a “necessary” condition. On its own, no law could serve as both “necessary” and “sufficient” conditions for achieving the intended anti-corruption objectives. If the law could satisfy both conditions, then Belize would be virtually corruption free, given that Belize has several pieces of anti-corruption laws already in place.

Nevertheless, while the law cannot single-handedly cure “improper conduct” in the public- and private-sectors, that fact does not negate the need for the “quality” of the law to be of the highest level. Candidly speaking, the output and outcomes of inadequate laws are many times analogous to not having the law at all. We have seen this with the likes of the Public Accounts Committee (PAC), for example. For all intents and purposes, the PAC is on the “books”, but has it been functioning? Of course, with the recently passed and long overdue reforms to this Standing Committee, many are hopeful that the PAC will graduate to truly fulfilling its intended purpose.

Reviewing the Draft Whistleblowers’ Bill

This brings us to the Whistleblowers Bill. As a standard practice, the BCCI’s Governance and Trade Division (GTD) as well as various in-house committees reviewed the Bill as to its level of adequacy. To do this objectively, however, a useful benchmark is the Transparency International (TI)’s principles for protected disclosure laws. This approach becomes especially useful when it is recalled that Belize is now part to the United Nations Convention Against Corruption (UNCAC) and is, therefore, expected to institute laws that are aligned with international standards.

Fundamentally, there are twenty-six (26) different parameters set by Transparency International against which the Bill was reviewed. The TI principles include the need for to law to incorporate (1) “a broad definition of whistleblowing”, (2) “a broad definition of who is a whistleblower”, (3) “protections for whistleblowers who reporting was based on a ‘reasonable belief’ of wrongdoing”, (4) “Protections from retribution”, (5) “Preservation of Confidentiality”, (6) provisions that place “the burden of proof on the employer” (i.e. that the employee was not penalized for whistleblowing); (7) employees have a right to “refuse participation in wrongdoing”, (8) anonymity protections, (9) provision of “personal protection” (safety); and (10) there should be an option for reporting to “external parties” (such as the media).

A future installment of the Business Perspective column will discuss the other 16 standards; however, if just those ten tenets were used to rank how well the current draft of the Bill aligns with international benchmarks, one would be able to get a picture of the sufficiency of the present language.

Using a scale of zero (0) to two (2), with the former signifying that the international principle is completely absent from the draft and the latter indicating complete alignment, it is noticeable that the draft obtains a score of 13.5 out of a total possible score of 20. If presented as a percent, that would be just about 68%—roughly 32 percentage points away from a perfect score.

The draft Bill does well in the first five areas shown in Table 1. For example, the Bill does appropriately define “whistleblowing” and who is a “whistleblower”. It also provides protections from “retribution”, and calls for “confidentiality”.

On the other hand, however, the draft Bill is completely silent on the matter of “personal protections” for whistleblowers and their families from personal attacks. It is also silent on providing a provision that explicitly grants employees the “right” to “refuse participation in wrongdoing”. Of course, the latter could be deemed as being implicitly present, but there is a virtue in unambiguously codifying these things into law.

Another area that could benefit from some strengthening is as it relates to the whistleblowers’ ability to report to external parties such as the media, civil society organizations, trade unions, or legal and business associations. The Bill proposes to establish fourteen (14) designated authorities to whom persons can report wrongdoings. The inclusion of the BCCI and the Belize Business Bureau (BBB) satisfies the call for the business-related “external parties”. However, the media, the trade unions, and other civil society organizations are not included among the list of designated authorities. For this criteria, a value of one (1) was assigned; however, a valid case could be made that the score should have been closer to 0.25.

The remaining 12 named designated authorities are all public-sector entities such as the Office of the Auditor General, the Belize Police Department, the Integrity Commission, and the Elections and Boundaries Commission (“The Commission”).

On an indirectly related note, it is worth underscoring that presently before Parliament there is also the Belize Constitution (Tenth Amendment) Bill, 2021, which—if passed into law—would subject four constitutionally assigned institutions, including The Commission, to the political cycles. Fundamentally, the change would further reduce the little remaining insulation from political interests that the Commission presently enjoys.

Now, with that lack of insulation in mind, one would have to seriously consider if the Elections and Boundaries Commission—under such proposed conditions—could legitimately be viewed as an impartial designated authority under the Protected Disclosures (Whistleblowers’) Bill, 2021.

In the End

Ultimately, as was said earlier, the BCCI welcomes the Whistleblowers’ Bill. However, it is important that the law satisfies the basic international standards for it to even come close to serving as a “necessary condition”. Will the law itself cure the scourge of corruption? Of course not! There are several other factors (including culture) that must accompany the law so as ensure the presence of both “necessary” and “sufficient” conditions. Nevertheless, the preceding fact does not contradict the need for us to get the law “right” from the start.

As mentioned above, we will look at the remaining sixteen (16) international parameters for this type of law in future installments of the Business Perspective Column.