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Whistleblower Protection Bill: A Weak and Immature Attempt



Tara Bahadur Bhandari

Kathmandu, June 18: Corruption has become a major concern for every country. In the context of Nepal, corruption has spread like an infectious disease throughout society. The disease of corruption has infected every level from leaders and officials to ordinary citizens.

The state has attempted various methods over time to control corruption. In ancient times, attempts were made to control corruption by associating it with sin and religion, saying that consuming public and religious funds would bring harm to one’s offspring. Later, legal measures were sought to address the issue.

Nepal introduced the Corruption Control Act in 2007, yet corruption did not diminish; instead, its form and extent increased. With the development of communication and information technology, controlling corruption has become even more challenging. More alarming is the problem of collusive corruption, where major corruption cases often involve leaders and officials from all parties. To combat this, a strong law is needed to break this collusion and ensure that tax money paid by citizens is spent for their benefit. Furthermore, the will and commitment to enforce the law is another major challenge, and public vigilance is equally important.

There are a few acts and regulations in Nepal that encourage individuals to report corruption. For instance, Section 20 of the Human Trafficking and Transportation Control Act mandates keeping the complainant’s identity confidential and provides 15% of the fine imposed on the perpetrator as a reward to the informant. Similarly, Section 29 of the Revenue Leakage (Investigation and Control) Act 1995 offers a reward of 10% or up to 5 million rupees, whichever is less, for information on smuggling of precious metals like gold and silver. Other materials are rewarded with 20% or up to 2.5 million rupees, whichever is less. The National Parks and Wildlife Conservation Act 1973 also has provisions for using informants to control poaching.

Nepal signed the United Nations Convention against Corruption on December 10, 2003, and ratified it on March 20, 2011. However, Nepal has yet to take steps to create a Whistleblower Protection Act as per Articles 32 and 33 of the convention. Article 32 of the convention requires each state party to provide effective protection against potential retaliation or intimidation for witnesses, experts, and their relatives and close associates who give testimony concerning offenses established in accordance with the convention.

For physical protection, there are commitments to relocate informants as needed, maintain confidentiality, and ensure security during witness examinations. Article 33 commits to protecting individuals who, in good faith and on reasonable grounds, provide information concerning corruption to competent authorities from any unjustified treatment.

Among the 140 countries that have signed the convention, around 60 have enacted and implemented Whistleblower Protection Acts. India enacted such a law in 2014 and amended it in 2015, removing ten types of information from the definition of public interest under the act. Bangladesh and Pakistan also have similar laws in place.

The primary objective of such laws is to encourage citizens and relevant officials to report decisions or actions related to corruption and to ensure the protection of informants. However, the draft bill currently proposed in Nepal appears weak in both respects.

Although the main basis for proposing the bill is the convention against corruption, it seems to undermine the provisions related to informant protection under Section 29 of the Right to Information Act 2007.

The preamble and definitions of the proposed bill reveal its immaturity. The definition of an informant is narrowly confined to government employees, and the provision allows reporting such information only within one year of retirement, questioning the bill’s rationale. The definition of public bodies is limited to government and government-invested offices, whereas international practices extend this to private industries, commercial establishments, and companies, as they can also engage in tax evasion, adulteration, and other unlawful activities affecting public health, environment, and rights.

The provisions regarding information reporting do not encourage citizens to confidently report improper decisions and actions. Unlike Section 29(1) of the Right to Information Act, the draft uses the phrase “can report” instead of “must report,” which is less compelling.

The bill lacks clarity on protection and is silent on incentives. While the law’s purpose is to encourage informants to take risks and provide information in the public interest, the bill fails to address this aspect adequately. The hallmark of such laws is the balance between risk and reward. According to the National Whistleblower Center, whistleblowers in the United States helped recover $46.5 billion for the government and received $7.8 billion in rewards by 2020.

The draft bill does not adequately address where information should be reported. It requires informants to register information with full details, contrary to anonymous reporting, which discourages informants. The provision allowing officials to keep information on file and not act on it after three years indicates a superficial approach to lawmaking.

Given the proliferation of delegated legislation in Nepal, the draft bill also grants significant rule-making authority to the executive. Instead of stipulating in the law, it leaves the details of maintaining information records, protecting and providing facilities to informants, investigating complaints, and informing informants to the concerned ministry.

The bill must clearly provide for the physical security of informants. Since it does not guarantee the confidentiality of informants, this must be explicitly stated. The bill does not accept anonymous complaints, which should be recognized and investigated. The provision requiring complaints to be submitted to the office head should be expanded to allow direct reporting to the relevant regulatory body.

The bill should include the establishment of a separate authority for this purpose. The clarity regarding the authority to initiate action is lacking in the bill and needs to be clarified. It does not specify under which law the perpetrator will be prosecuted if corruption is proven, which should be included in this law. The reward for informants should be substantial compared to the risks they take in reporting corruption, covering physical, financial, and social risks to themselves and their families. However, the bill vaguely states that the office head can recommend rewards without specifying the amount or type of recognition.

It should also clarify what compensation the informant’s family would receive if the informant is attacked or disabled. An attractive portion of the amount deposited in the state treasury should be guaranteed to the informant as a mandatory condition of the bill. Otherwise, the bill risks becoming merely nominal, and civil society and the media should advocate for its improvement without delay.

In conclusion, while the intent behind the Whistleblower Protection Bill is commendable, its current form is inadequate to effectively combat corruption. It requires significant revisions to ensure robust protection and incentives for informants, thereby fostering a culture of transparency and accountability in Nepal.

[Bhandari is the Executive Director of Samudayik Sarathi-Nepal]


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