The legal protection of Whistleblowers

The Bangladesh parliament has enacted the Public Interest Information Disclosure (Provide Protection) Act (popularly referred as the Whistleblower Protection Act) to guarantee legal protection to the whistleblowers back in 2011. Even though the principal aim of this law is to ensure safeguards to the whistleblowers (Whistleblower denotes any person who discloses the public interest information), journalists are also eligible to take advantage of this legislation for their professional purposes. Regrettably, after a decade following its enactment, very little is known about what the law means and what it can do to ensure transparency, accountability, and good governance in the public domain. Most of the people including the government employees, activists, and journalists remain ignorant about the existence of such a legislation. Consequently, the application of this piece of sunshine law becomes rare in this country.

The recent incident with Rozina Islam, a senior reporter of the leading Bangla daily Prothom Alo brings this issue into light again. Being a journalist, Rozina Islam is entitled to collect evidence and data from any government office. The Whistleblower Protection Act of 2011 enables anybody to disclose public interest related information and provides statutory safeguards from all types of civil and criminal cases or departmental proceedings or any kind of action, punishment, discrimination etc. The focus of this law is to uphold public interest and combat corruption by disclosing material information about any irregularity.

The Right to Information Act, 2009 (RTI Act) along with the Whistleblower Protection Act, 2011 creates a new regime for free flow of information and fearless journalism for public interest in Bangladesh. These two pieces of legislation  override the widely criticised Official Secrets Act and some other laws i.e provisions of the Evidence Act, 1872 (Section 123: evidence as to affairs of state); Rules of Business, 1996; the Government Servants (Conduct) Rules, 1979 etc after their enactment. Section 3 of both the RTI Act and the Whistleblower Act speak of the supremacy of the respective laws over any conflicting provisions in any other law having force for the time being in the country. So, there is no scope of hiding any public document under the veil of 'confidential' or by virtue of the colonial-era Official Secrets Act except truly classified secret document like sensitive defence policy, important formula, bi-lateral confidential contract etc. However, despite extensive condemnation, Section 32 of the Digital Security Act (DSA) of 2018 refers to the Official Secrets Act although the RTI Act will prevail in case of any incongruity between these two (Section 3 of the DSA).

Coming to the context of the recent incident, it is necessary to define 'public interest information'. In accordance with the Whistleblower Protection Act, public interest information means such an information of any agency which expresses that, any officer was, is or may be involved in: irregular and unauthorised expense of public money; mismanagement of public resources; misappropriation or misuse of public money or resources; abuse of power or maladministration; committing criminal offense or illegal or prohibited acts; a conduct that is harmful or dangerous for public health, safety or to the environment; or corruption. 

It is noted that disclosure of information relating to public interest is guaranteed under the Act of 2011. In addition, section 5 of the same Act confirms legal protection for the whistleblowers including non-disclosure of identity without consent; immunity from civil criminal or departmental proceedings; no measure prejudicial to financial, mental or social reputation; prohibition of demotion, transfer for harassment, forced retirement or discriminatory treatment by employer to an employee etc. If anyone contravenes this provision, s/he shall be sentenced to imprisonment for a minimum term of two years but not exceeding five years or with fine or with both and if that person is a government employee, departmental actions shall have to be taken apart from the mentioned punishment (Section 9).

The writer is an Assistant Professor of Law at Dhaka International University.