OUMM3203 - PROFESSIONAL ETHICS

Assignment Question

OUMM3203 - PROFESSIONAL ETHICS

 PURPOSE:

The assignment is to allow learners to relate the development of moral standards through the various processes involved in the formation of the law.

Tugasan ini bertujuan memberi ruang kepada para pelajar untuk menghubungkan pembangunan piawaian moral melalui beberapa proses yang terlibat dalam pembentukan undang-undang.

REQUIREMENT:  

The law is a set of rules established by a society to govern behaviour within the society. These rules reflect the collective choices of members of the society regarding any decisions and actions that affect its welfare.

The Malaysian Whistleblower Protection Act 2010 came into force on December 15, 2010. Explain the purpose and scope of the Act. Create hypothesise on how the moral issue underlying the said Act had developed into law through the respective formation processes within the framework of Malaysian society. 

===========My Answer=============

1.0       Introduction

The term whistle-blower comes from the whistle a referee uses to indicate an illegal or foul  play^. US civic activist Ralph Nader coined the phrase in the early 1970s to avoid the negative connotations found in other words such as "informers" and "snitches".

Definition by Wikipedia that a whistle blower (whistle-blower or whistle blower) is a person who exposes misconduct, alleged dishonest or illegal activity occurring in an organization.

The alleged misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health and safety violations, and corruption.

Transparency International-Malaysia (TI-M) president Datuk Akhbar Satar said Malaysia has crept up one slot in the Transparency International Corruption Perceptions Index (CPI) rankings but remains in the average range, indicating that graft-fighting measures efforts are still inadequate. In 2013 Malaysia scored 50, ranking 53 out of 177 countries surveyed compared to last year’s score of 49 and rank of 54 out of 176 countries.

He further stated that the level of corruption in Malaysia has not decreased significantly and urged the government to implement stronger anti-graft measures.

In the destined time The Malaysian Whistle blower Protection Act 2010 introduced to Malaysian.

The whistle blower protection law covers any member of the public and private sectors who discloses wrongdoings. Among the disclosures covered are:

·      abuse of authority

·      Violation of law and ethical standards

·      Danger to public health or safety

·      Gross wastage

·      Illegality; and

·      Mismanagement

To protect the whistle-blower, the disclosure of confidential information and/or the identity of the whistle-blower will be liable to a fine not exceeding RM50,000 or to imprisonment not exceeding 10 years or both.

2.0       Purpose and scope of the Act

The Malaysian Parliament passed the Whistle blower Protection Act 2010 (WPA 2010) in May 2010 and the Act came into force on Dec 15 the same year, in a initiative under the Corruption National Key Results Area (NKRA) of the Government Transformation Plan (GTP).

The Whistle blower Protection Act 2010 only offers protection to whistle blower if they make a disclosure of improper conduct’ to an authorized enforcement agency and they do not break any law, when making their disclosure to the authorities. The act therefore does not accord any protection to whistle-blower who go to the media.

With the enactment of WPA 2010, the officers of a company or any other person who provides information as to the misfeasance or wrongdoing  of any company or its directors are entitled to wider protection under the this act.

The WPA 2010 applies generally to whistle blowers who disclose information relating to the wrongdoings in the private or public sector. The WPA 2010 also is part of the efforts taken by Malaysia to fulfil its obligation under the United Nation Convention against Corruption.

Sec 6(1) WPA 2010 states that the whistle blower protection is only available to person who make disclosure improper conduct to any enforcement agency based on his reasonable belief that any person engaged, is engaged or is preparing to engage in improper conduct.

However, the protection afforded by WPA 2010 is only limited to a disclosure made to an enforcement agency.

This includes any ministry, department, agency or other body set up by the Federal Government or State Government conferred with investigation and enforcement powers.

The five main enforcement agency involved in the implementation of the WPA 2010 includes the Police Customs, Road Transport Department, Malaysian Anti-Corruption Commission and Immigration Department.

The enforcement agency under WPA 2010 is given a number of powers including the power to receive disclosure of improper conduct, to implement and enforce the provisions of the WPA 2010. The coordination of all the enforcement agencies would fall within the responsibility of the Legal Affairs Division of the Prime Minister’s Department.

Sec 6 (2)(a) WPA 2010 allows disclosure of improper conduct to be made even if the person making the disclosure is not able to identify a particular person involved in the misconduct. Disclosure of improper conduct can be made in writing or orally. A whistle blower who makes a disclosure in accordance with s.6 WPA 2010 would be conferred with whistle blower protection under s.7(1) WPA 2010 such as :

        (a) Protection of confidential information;

        (b) Immunity from civil and criminal action; and

        (c) Protection against detrimental action.

        The term ‘confidential information’ used in the WPA 2010 refers to information about the identity, occupation, residential and work address of the whistle blower and the person complained of by the whistle blower and the person complained of by the whistle blower., information disclosed by the whistle blower and any information if disclosed may cause detriment to others.

        According to sec 8(1) WPA 2010, the whistle blower is entitled to full anonymity of any information about himself and the alleged improper conduct that he provided to the enforcement agency.

        Any person who makes disclosure of confidential information to others unless allowed by WPA 2010 would guilty of an offense.

        Sec 9 WPA 2010 states that a whistle blower should not be subject to any civil or criminal liability, including disciplinary action as a result of the disclosure of improper conduct. It must remembered that an employee owes a number of duties to his employer such as duty of loyalty, duty to act in the interest of the employer and duty of confidence. Any disclosure of information relating to the employer may amount to breach of these duties.

         The protection afforded by Sec.9 is important as the defences provided by the common law for these breach of duties are very narrow. Section 10 WPA 2010 deals with the protection of the whistle blower against detrimental action.

        ‘Detrimental action’ has been defined as any action causing injury, loss, damage, intimidation, harassment, interference with lawful employment or livelihood of any person and a threat to take any of the actions as stated earlier.

        It is important to take note that the protection found in sec.10 is available to persons related or associated related or associated to the whistle blower. But it is not expressly provided in the WPA 2010 as to who can be considered to be related to or associates with the whistle blower. Sec 10(1) prohibits any detrimental action to be taken against the whistle blower as a result of disclosure of improper conduct.         

        Sec 10(5) WPA 2010 states that no person acting on behalf of any public or private body shall terminate a contract, withhold payment that is due under a contract or refuse to enter into a subsequent contract solely for the reason that the party to the contract or its employee or employer has made a disclosure of improper conduct of the private body to the enforcement agency.

        As a consequence, the private body terminates any contract with the supplier. Arguably, if the employee suffers any retaliation by the supplier’s client or creditor, the employee may rely on the protection under sec.10 (1) as it does not limit that the disclosure of improper conduct must relate to the person taking detrimental action.

        A whistle blower may complain to any enforcement agency if he or any person related to or associated with him suffers from any detrimental action in breach of sec 10(1). A person is deemed to have taken a detrimental action against the whistle blower if ;

(i) the reason behind his action is due to the disclosure of improper conduct or his belief that the whistle blower has made or intends to make disclosure of improper conduct. Or

(ii) he incites or permits another person to take or threaten to take detrimental action against the whistle-blower  due to the disclosure of improper conduct.

In any proceeding, the burden lies with the defendant to prove that the detrimental action taken or intended to be taken against the whistle-blower or any person related to or associated with him is not in reprisal for a disclosure of improper conduct.

        Nonetheless, the whistle blower protection under the WPA 2010 may be revoked by the enforcement agency in six circumstances under s.11 (1) WPA 2010 as follows:

• a)    The whistle-blower himself has participated in the improper conduct disclosed
• b)    The whistle blower wilfully made in his disclosure of improper conduct a material statement which he knew or believed to be false or did not believe it to be true.
• c)    The disclosure of improper conduct principally involves questioning the merits of government policy, including policy of public body
• d)    The disclosure of improper conduct is made solely or substantially with the motive of avoiding dismissal or other disciplinary action or
• e)    The whistle blower, in the course of making the disclosure or providing further information commits an offence under WPA 2010.

        The enforcement agency must give a written notice to the whistle blower if the whistle blower protection is revoked. Any whistle blower aggrieved by the enforcement agency’s decision to revoke his protection may refer the decision to a court for determination.

        Section 12 WPA 2010 imposes a duty on the enforcement agency to conduct an investigation and the recommendations to be taken. The enforcement agency has to inform the whistle blower if the disclosure of improper conduct is not substantiated and where the Public Prosecutor decides not to prosecute. If the improper conduct is not substantiated and where the Public Prosecutor decides not to prosecute. If the improper conduct is not substantiated and where the Public Prosecutor decides not to prosecute.

         If the improper conduct constitutes a disciplinary offence, s.13 (1) (b) requires the enforcement agency to make recommendation to the appropriate disciplinary authority or to the employer to initiate disciplinary proceedings or other appropriate steps against those who had committed any improper conduct. The appropriate authority and employer shall inform the enforcement agency as to the steps taken to give effect to the former’s finding and recommendations or the reasons for not doing so.      

         If the enforcement agency considers that insufficient steps or no action has been taken to give effect to its finding and recommendations within a reasonable time, it can report the matter to the Minister.

        The enforcement agency must also inform the whistle blower as to the actions taken by the appropriate disciplinary authority or employer in relation to its finding and recommendations. Sec 14 (1) WPA 2010 imposes a duty on the enforcement agency to investigate any complaint of detrimental action that it receives from a whistle blower.

        Duties and powers of the enforcement agency in dealing with investigations, finding and recommendations of any complaint of detrimental action are similar to s.13 WPA 2010.

        Sec 15 (1) WPA 2010 provides that upon a request by the whistle-blower that  reprisal actions have been taken against him or at any time he fears that detrimental action would be taken against him, the enforcement agency may on his behalf, seek damages, injunction  or any other relief as the court deems fit. Alternatively, the whistle blower may take legal action on his own to pursue the remedies as mentioned earlier.

3.0       Hypothesise on how the moral issue underlying the said Act.

Based on the Oxford Dictionary Moral can be define as standards of behaviour; principles of right and wrong.

One of the serious standard of behaviour in Malaysia now is corruption. Due to that it seems that whistleblowing mechanisms of the said act (WPA 2010) have operative moral request in the public and private sector because fraud and corruption occurs wherever people exist including Malaysia.

This Act specifically for the use of public, employees or extended to include other stakeholders such as suppliers or customers.

WPA 2010 can also be extended to cover issues other than fraud and corruption, e.g. workplace safety, environmental hazards, bullying and discrimination.

4.0       Individual

It give the impression that WPA 2010 is one of good mode in curbing the problem of corruption, fraud and other serious issue in Malaysia. However, it is probable that many people do not even consider blowing the whistle, not only because of fear of retaliation, but also because of fear of losing their relationships at work and outside work.

Ideas about whistleblowing vary widely. Whistle blowers are sometimes seen as selfless martyrs for public interest and organizational accountability; others view them as "traitors" or "defectors," solely pursuing personal glory and fame, or view their behaviour as motivated by greed.

Some academics (such as Thomas Alured Faunce) feel that whistle blowers should at least be entitled to a rebuttable presumption that they are attempting to apply ethical principles in the face of obstacles and that whistleblowing would be more respected in governance systems if it had a firmer academic basis in virtue ethics.

Whistle-blowers, those individuals who call intention to possible wrongdoing within their organizations, are the subject of much controversy. Some say that whistle-blower are noble character, willing to sacrifice personally and professionally to expose organizational practices that are wasteful, fraudulent, or harmful to the public safety.

 Others suggest that whistle blower are, by and large, disgruntled employees who maliciously and recklessly accuse individuals they feel have wronged them in order to attain their own selfish goals.

 4.1      The first factor

The Malaysian case that related with whistle-blower occur on 30 May 2012, where Rafizi Ramli was summoned by Bank Negara Malaysia (BNM) to give testimony under the Bank and Financial Institutions Act (BAFIA) related to the National Feedlot Corporation (NFC), two weeks after an ex-Public Bank Clerk was hauled up under the same law for exposing confidential banking details of the National Feedlot Corporation (NF Corp). He was charged on 1 August for violating the Banking and Financial Institutions Act (BAFIA).

4.2       The second factor

Then on 13 July 2012, whistle-blower Rafizi Ramli was arrested under the charge of violating Section 97(1) of the Bank and Financial Institutions Act (BAFIA) in connection with the award of the Ampang LRT extension contract to a consortium led by George Kent (Malaysia) Berhad. The offence carried a maximum jail sentence of 3 years and a fine up to RM3million.

4.3       The third factor

National Feedlot Corporation Scandal whistle by him on 8 November 2011, Rafizi Ramli exposed the NFC scandal in his blog, in resulting in Datuk Seri Shahrizat Jalil stepping down from from her post as Minister of Women, Family and Community Development.

4.4       The fourth factor

Then, Sharizat then filed a RM100m defamation suit against him and Ampang Member of Parliamt Zuraida Kamaruddin on 19 January 2012 for claiming that she misused a federal loan meant for the National Feedlot Centre (NFC).

Looking that this situation, it appears that WPA 2010 did not give protection for whistle blower who exposed the misconduct of corruption in the media. As previously stated under the WPA, a whistle blower does not enjoy any protection if he decides to communicate his allegation of wrongdoing to a person other than a government enforcement agency and this is what happen to Rafizi Ramli. Whether he is a Hero or Traitor in exposing misconduct of certain personality in the Government cannot be categorised accordance to the WPA 2010.

5.0       Group/Organization

The whistleblowing is to promote ethical behaviour in organization for example business organization. Big business are generally regarded as too powerful, and as exercising too much control on one’s lives.

Whistle-blower are regarded as the underdogs, taking on powerful organization for society’s well-being. However in other aspect, the world is becoming increasingly complex. Business organization must deal with diverse and demanding stakeholder groups. More and more conflict between business and these group can be expected concerning controversial issues such as environment, civil right, product safely , animal rights and many other issues. Employees who sympathize may be torn between their feeling toward these group and loyalty to their organization.

 When confronted with ethical conflict which force them to choose between competing loyalties, they may choose actions which are consistent with their perceived obligations to individuals and group outside organization.

Employees who blow the whistle on their company for perceived the wrongdoing face risks that range from termination to less desirable assignments or exclusion from social invitations. Despite these possible risks, employees may be morally justified to blow the whistle under the following condition:-

• 1)    When the firm through a policy or product will commit serious and substantial harm to the public (as consumer or bystanders) the employee should report the firm.
• 2)    When the employee identifies a serious threat to those may be harmed, he or she shoul report it and state his or her moral concern.
• 3)    When the employee’s direct supervisor does not act, the employee should use the internal procedures and chain of command up to the board of directors.
• 4)    The employee must have documented evidence that is convincing to a reanobale, impartial observer that his or her view of the situation is accurate and that the firms’ practice, product or policy seriously trethens and puts in danger the public and/or product user.
• 5)    The employee must have valid reasons to believe that revealing the wrongdoing to the public will result in the necessary changes to remedy the situation. The chance of succeeding must be equal to the risk and danger the employee takes to blow the whistle.

For Instance,  the awareness of whistle blower can be appreciated by  Sime Darby Malaysia which they provide channel for whistle blower via their website http://www.simedarby.com/Whistleblowing.aspx where the page serves as guideline for the Sime Darby Group’s stakeholders to report a whistleblowing complaint to the management of Sime Darby for action.

It state that Sime Darby expects the highest standards of integrity from all its employees and vendors. It takes a serious view of any wrongdoing on the part of any of its employees, management, directors and vendors in particular with respect to the obligations to the Gropu’s interests.

The whistleblowing channels are established to help stakeholders raise concerns, without fear of retaliation, on any Wrongdoing that they may observe in the Sime Darby Group.

Parties can report a whistleblowing complain includes corruption, fraud, misappropriate of assets, sexual harassment, criminal breach of trust, illicit and corrupt practise , misuse of confidential informations and so on. Parties may submit them via emails, faxes or letters.

This effort can help to strengthen the enforcement of WPA 2010 in Malaysia especially among corporate and private sector.  

6.0       Social

The main issue about the role of confidentiality in society and the responsibilities of individuals who encounter disturbing information that they consider damaging national security.

Individuals must consider their role within society and how it relates to the common good.Two principle stand in tension when considering whether to make information public: the public right to know and the right of secrecy. Both of these virtues are important, yet neither is absolute. Some information is damaging to national security and should be kept secret; at other times the government’s claim for secrecy are overblown.

Our society could not function if individuals routinely broke their agreement. Employees of all types owe fidelity to their employers, if not to a professional code of conduct. This is especially true of members of the military or people in public service.

Yet it is these same people who are privy to information of national interest. At times, claim of justice may supersede the claim of fidelity for employee, one’s professional duty sometimes include a legal and moral duty to report violations of law, especially if the violations are being covered up.

Due to that WPA 2010 set the mark that the report shall be made to the Enforcement agency, so further investigation can be taken to categorized it as  public right to know or  information is damaging to national security and should be kept secret.

7.0       Political

The ethical debate on whistleblowing concerns centrally the conflict between the right to political free speech and the duty of loyalty to the organization where one works. This is the moral dilemma whistleblowing.

 Political free speech is justified because it is a central part of liberal democracy, whereas loyalty can be motivated as a way of showing consideration for one’s associates.

The political philosophy of John Rawls applied to this dilemma, and it is shown that the requirement of loyalty, in the sense that is needed to create the moral dilemma of whistleblowing, is inconsistent with that theory.

In this sense, there is no moral dilemma of whistleblowing. This position has been labelled extreme in that it says that whistleblowing is always morally permitted to overcome corruption.

Critics by Politic Personnel Lim Kit Siang on WPA 2010 embrace the lack of protective safeguards and proactive investigation in the WPA makes no difference for genuine whistle blowers. As long as there is no leadership by example and corrupt with no moral outrage against those who refuse to comply with international norms of proper behaviour and trustworthy conduct of public assets, laws such as the WPA will only be an empty symbol of our fight against corruption.

8.0       Summary

The whistle-blower Protection Act 2010 is a law in Malaysia to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct, whether in the public sector or the private sector it is supposedly part of the government’s effort to tackle corruption and promote good governance under the Government Transformation Programme (GTP).

As Malaysian we must support Government aspiration in installing integrity behaviour to the public. Anyone who make any report on misconduct shall have protection under WPA 2010. However, there is always rooms for improvement on the implementation of the Act. Time by time, the public also must increase the awareness of good conduct to make sure we can be recognized by the world as respectable society with high moral standard. With that hopefully hope that integrity in private and civil would be increased accordingly.

References

http://blog.limkitsiang.com/2012/03/06/how-effective-has-the-enforcement-of-the-whistleblower-protection-act-2010wpa-been-in-malaysia/

http://en.wikipedia.org/wiki/Whistleblower

http://malaysiafactbook.com/Whistleblower_Protection_Act_2010

http://www.thesundaily.my/news/895842

http://www.themalaysianinsider.com/malaysia/article/whistleblower-reward-only-civil-servants

http://www.wongpartners.com/files/Uploads/Documents/Type%202/WP/al_wongpartners_whistleblowerprotectionact_jan11.PDF

Lars Lindblom, Dissolving the Moral Dilemma of Whistleblowing Journal of Business Ethics Volume 76, Issue 4 , pp 413-426 

Tim Barnett, Assistant Professor of Management, Louisiana Tech University Sam Advanced Management Journal, Autumn, Why Your Company Should Have A Whistleblowing Policy. 1992, pp. 37-42

When is Whistle-Blowing Morally Justified? by JOSEPHSON INSTITUTE on MARCH 22, 2011

http://www.simedarby.com/Whistleblowing.aspx