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
