Issue link: https://maltatoday.uberflip.com/i/1514570
10 OPINION maltatoday | WEDNESDAY • 17 JANUARY 2024 Dr Mark Said is a veteran lawyer Mark Said STATISTICALLY, the govern- ment is approached by an av- erage of seven whistleblowers a year, but it remains unclear how many the authorities consider, what the reports are about, and how many result in investiga- tions or court action. Not only that, but the few high-profile cases we had were surrounded by political controversies that, in the end, did not afford any stat- utory protection to the whistle- blowers concerned. When Joseph Cauchi ac- cused the husband of Giovan- na Debono, a member of par- liament and Minister for Gozo until 2013, of misappropriation of public funds, he became the only witness ever granted pro- tection under the Whistleblow- er Protection Act. The credibil- ity of the evidence he provided as a protected witness was dis- counted at trial. In that case, the law was abused since it was perverted to serve a politically motivated purpose to perse- cute an opposition politician. In 2018, Jonathan Ferris claimed to have come across evidence of corruption reach- ing the very top of the Maltese government when he worked as an investigator at Malta's Financial Intelligence Analysis Unit. He was denied any mean- ingful means of having his case for protection heard at all un- der the pretext that he failed to act in line with the dispositions of the law. Around 2017, Maria Efimova applied for protection after the reporter to whom she provided information, Daphne Caruana Galizia, was killed in her own car with a bomb detonator. Both Efimova and Caruana Galizia revealed information on Maltese high-level officials involved in the Panama Papers scandal. No full protection was provided to the whistleblow- er and her family, and, con- sequently, she fled to Greece. Apart from receiving threats and being prosecuted in Malta, Efimova continues to bear all the legal costs in the Maltese court. Her case is still ongoing. And how can we forget how the whistleblower working within Transport Malta was treated by the authorities after spilling the beans on what was going on at Transport Malta when it came to driving licence exams? A pivotal witness was conveniently locked out of Malta in order to prevent him from duly testifying in court. When considering whistle- blowing in Malta, the fact is that while it is comprehensive in terms of legislation, it is in- effective with respect to real cases of whistleblowers asking for protection. The burden of proof is on the whistleblower. He or she must provide evi- dence of misconduct and prove that whistleblowing is legiti- mate. In the EU Whistleblow- ing Directive, the burden of proof is always on the report- ed person, which significantly simplifies the process of re- porting for the whistleblower. Whistleblowers can get free legal assistance according to the EU Whistleblowing Direc- tive, as well as compensation for moral damage. As long as Malta doesn't follow the rec- ommendations and protect its whistleblowers, this chance is also lost for Malta's citizens. The longer Malta ignores whis- tleblowers' safety, the more corrupt and unattractive in- vestments will continue to be. As whistleblowers often have access to information that sometimes cannot be detected by other integrity mechanisms and institutions, they consti- tute a unique added value to institutional safeguards and can make a vital contribution to the fight against corruption by promoting greater transpar- ency and accountability in the central and local government. Our legislation has not always been matched with effective measures for the management of whistleblowing or adequate measures to protect individuals who decide to report cases of misconduct or wrongdoing. At the same time, legitimate pub- lic concern about the manipu- lation of public opinion in the media through so-called "fake news", can make it easier for those accused of misconduct to dismiss those criticisms as be- ing false. Ministers are failing to put in place effective policies to protect whistleblowers despite their role in exposing a series of major scandals. Furthermore, whistleblowers who risk their careers to uncover wrongdoing within public services are being victimised by managers who nearly always escape sanction. Furthermore, many govern- ment departments are still fail- ing to support employees who come forward in the public in- terest. A positive approach to whis- tleblowing should exist wher- ever the taxpayer's pound is spent by the government and public bodies. A startling dis- connect exists between our generally good whistleblowing policies and the way they oper- ate in practice. Officials who do try to raise concerns often have to show remarkable courage in coming forward, and the failure to provide effective protection could deter others from doing the same. I have personally encountered cases of treatment of whistle- blowers that were quite shock- ing, with bullying and har- assment from colleagues and government departments una- ble or reluctant to say wheth- er any action had been taken against their persecutors. In theory, many departments have improved their whistle- blowing policies, but our civil service culture does not en- courage those with concerns to Disincentivising whistleblowing