Qs & As
Whistleblowers & The Official Secrets ActWhistleblower protest in European Parliament: Edward Snowden – Former computer intelligence consultant who leaked highly classified information from the National Security Agency in 2013, when he was an employee and subcontractor
* ‘Employees are bound by confidentiality rules. But if an employee feels or has an information that wrongdoing… is being perpetrated, he cannot and should not remain silent’
Successive governments have failed to come up with either a Freedom of Information Bill, even with necessary safeguards, or a legal protection for whistle blowers, who may be ostracized for daring to raise a wrongdoing of consequence that they have been made aware of. There may be good reasons in the current context of the average Mauritian’s capacity to adapt to such a novel culture or ingrain the usage of such a Freedom. On the other hand, Mauritius is signatory to two UN Conventions enjoining each state to provide legal protection to whistle blowers but as yet we have none, says Lex.
* A whistle blower is defined as one person who comes forward and shares his/her knowledge on any wrongdoing which has happened or is happening in an institution or in a specific department. Would Sherry Singh qualify as a whistle blower in light of the allegations he made public about instructions received from the Prime Minister to allegedly allow a “third party” to access the Mauritius Telecom network with a view to installing equipment which would enable “sniffing” of internet traffic to and from Mauritius?
In a short article published by the Temple Group on 14 April 2020, whistle blowing is explained as follows: The term “whistle blowing” does not have a precise and universal legal definition. A commonly used interpretation is that it refers to the denunciation by an employee or any person of corruption, fraud, and other wrongdoings which could harm public interest. However, many employees do not denounce illegal activities as they are usually in a vulnerable position and fear reprisals.
Transparency International defines whistle blowing as ‘the disclosure of information about a perceived wrongdoing in an organisation, or the risk thereof, to individuals or entities believed to be able to effect action.’
Yes, Sherry Singh is a whistle blower in the sense that he has denounced what he felt is an intrusion on fundamental rights of individuals to privacy by an attempt at sniffing and possibly an invasion of national security by a third party.
* One would presume that Mauritius Telecom employees, especially the ones in the higher hierarchy, are bound by the confidentiality clauses clearly stated in their contract of employment given the highly sensitive nature of their jobs. In light of information publicly available at this stage, does it appear that Sherry Singh might be booked for breaking the confidentiality agreement with Mauritius Telecom?
As a rule, employees are bound by confidentiality rules. But if an employee feels or has an information that wrongdoing by way of corruption, money laundering, espionage and the like is being perpetrated, he cannot and should not remain silent. Confidentiality is a relative concept. Even in the courts of law, confidentiality must give way in the interest of a fair trial to which an individual is entitled in a democratic country.
* Some employees may reasonably believe they are acting in the public interest by whistle blowing a matter that they consider is so crucial for the public to be made aware of. If we take it that the public interest is about the common good – what benefits society or citizens in general – it should not be difficult for the courts to determine whether the whistle blower acted in good faith or not, isn’t it?
Public interest is a nebulous principle. Governments will hide behind the notion of public interest in order to withhold documents or information from the public. In courts of law, when information which is considered confidential is required to establish whether an accused party is guilty or not, governments resort to what is known as public interest immunity. Judges or magistrates are not bound by a certificate of confidentiality, but they peruse the information in confidence and decide whether the information should be released.
Public interest is not a one-way traffic. It cuts both ways. One strand is that public interest would be against the release of secret information. The other strand is that the information should be released for the public good.
* There are confidentiality obligations that come under different laws, like the Banking Act, for example. It seems the Official Secrets Act imposes more constraining obligations, but does it apply to all citizens, not only civil servants, who might have access to confidential information?
The Official Secrets Act apply to all.
Section 3 of the Act states: (1) Any person who, for any purpose or in any manner likely to prejudice the safety or interests of Mauritius – (a) approaches, inspects, enters, passes over, or is in the neighbourhood of a prohibited place; (b) makes any plan that is calculated or intended to be, or might be, directly or indirectly, of use to a foreign state or disaffected person; (c) obtains, receives, collects, retains, records, makes use of, publishes or communicates any code word, plan, article, document or information which is calculated or intended to be or might be, directly or indirectly, of use to a foreign state of disaffected person, shall commit an offence.
* Is there a distinction that has to be made between confidential and secret information?
There is no difference in practice or in law as regards the use of these two terms. Both have one aim, namely to protect information that is considered to be sensitive and the release of which may be damaging to the national security of a State or to business or to the private life of an individual.
* In 2013, United States federal prosecutors filed a criminal complaint against Edward Snowden – perhaps the most famous whistle blower in history – charging him with theft of government property and two counts of violating the Espionage Act of 1917. Snowden, a former computer intelligence consultant, had leaked highly classified information from the National Security Agency when he was an employee and subcontractor. Could an employee of Mauritius Telecom be criminally charged for divulging sensitive information?
Yes, depending on the nature of the information and the damage if any caused or damage that may potentially be caused.
* There is also the issue of protection for whistle blowers. Very few people will come forward to denounce any wrongdoing or corruption/fraud if they do not obtain some form of protection from reprisals. Do our laws provide for any kind of protection?
There is in Mauritius no law for the protection of whistle blowers. Yet Mauritius has signed two conventions that are the United Nations Convention against Corruption, and the United Nations Convention against Transnational Organized Crime and its protocols. Both conventions request states to ‘provide effective protection from potential retaliation or intimidation for witnesses’, as pointed out by Transparency International.
In an article titled ‘Whistle blowers crave sunshine’, published in the daily l’express on 29 August 2008, the author refers to what the current Attorney General once stated on whistle blowing. This is what Mr Maneesh Gobin stated:
‘Whistle blowing and whistle blower protection go hand-in-hand. Becoming a whistle blower is one of the loneliest and most difficult choices one can make in life. Those who come clean on the wrongdoing they witness in the corporate suite or in government risk immediate ostracism.’
Nonetheless there is still no legislation for the protection of whistle blowers.
* It does not seem that the Prevention of Corruption Act 2002, which provides the legal framework for the fight against corruption in the civil service, provides sufficient protection to informers and witnesses who provide information to the ICAC on possible acts of corruption besides non-disclosure of that information in proceedings before any court as well as the identity of the informer. Would that amount to sufficient protection for whistle blowers?
The Office on Drugs and Crime has expressed the view that – ‘Promoting integrity, transparency and accountability in the public sector is an important aspect of UNCAC Chapter II that is related to the prevention of corruption. In particular, Articles 7 and 8 of the Convention address in detail questions related to transparency and accountability in the public sector. The systems and measures States are required to introduce or consider may require new legislation or amendments to existing laws, in accordance with the fundamental principles of their legal systems.’
On the other hand, Transparency International recommends the following: ‘Developing and adopting comprehensive legislation on whistle blower protection and implementing comprehensive strategies would be a clear signal from the Mauritian government that the declarations to rid the country of corruption carry weight.’
* All the parties that have been in power have not made good on their electoral promises to introduce a Freedom of Information Act/Right to Information Act. In the absence of such a law as well as one to protect whistle blowers, it’s the culture of secrecy that will get perpetuated. What do you think?
Indeed, no government has dared come up with a Freedom of Information Act. The present government, which has been in power since 2014, expressed the will to come up with such a legislation and this was mentioned in the President’s address to the National Assembly.
A Freedom of Information Act would give citizens the right to access information held by public authorities. The principle behind such a legislation is to try to make a government more transparent and to increase public confidence in political institutions and the governance of a country. But then would such a legislation open the floodgates to a sort of mass spying of government ministers and public officials or would a judicious use be made of such a law?
In Mauritius these days the culture is to vilify and criticise. Until we get a population more versed in cultural and other values of courtesy and responsibility there would be a danger in having such a law. It is understandable why successive governments have not done anything about this.
Tony Blair, the former British Prime Minister, regretted having enacted the Freedom of Information Act. In his autobiography ‘A Journey’, he writes: “Freedom of Information. Three harmless words. I look at those words as I write them and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”
Mauritius Times ePaper Friday 15 July 2022
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