WIN is pleased to support Repubblika's press release concerning Malta's new law to protect whistleblowers. Visit the EU Whistleblowing Monitor to read further analysis on why this law is a 'Trojan Horse'.
The New Whistleblower Law is Laughable
Repubblika states that the changes to the Whistleblower Act law that Parliament approved yesterday are not enough.
On 15 November 2021, just one month before the time limit imposed by the European Union to transpose the European Directive to protect whistleblowers, the government published Bill 249 to amend the Whistleblower Protection Act, Cap. 527.
Repubblika has repeatedly called on the government to consult in the preparation of any Bill, but until a month ago the government kept a close guard over what it was doing. This is very disappointing, and not just for us. In his annual report in 2021, the Ombudsman expressed disappointment that he was not consulted on amendments affecting his office and expressed the hope that this would not happen again. Yet, it has happened again.
Together with experts from the Whistleblowing International Network, with whom Repubblika has partnered, we are analysing the new reforms and in January will publish a detailed opinion.
At this preliminarily stage, we can safely say the changes made by the Government are not enough.
The law only protects individuals who report to specific formal units. This contrasts with the model of the first European law to protect whistleblowers adopted in 1998 in the UK that protects workers who reveal information in the public interest to any responsible person in the workplace or to anyone reasonably believed to be responsible for the wrongdoing that is taking place. This extends protection to anyone who advises their superiors of potential wrongdoing - in line with normal workplace practices - as if they had made a report to any responsible unit for receiving such disclosures. This model is also followed in the laws of Ireland and France.
Worse still, the Malta law does not provide any of the guarantees of freedom from potential conflicts of interest over who decides whether a witness is granted protection. This means that what already happens in Malta will continue to happen and witnesses who try to report government wrongdoing do not have any guarantee of protection.
Malta's experience since 2013 is that the Government controls the authority receiving applications for protection. This has meant that the law has never been used to expose corruption. Potential witnesses of corruption were threatened with consequences if they revealed the information they were required to give to the authority to justify their application for protection. Their applications were rejected, and it is likely because giving these whistleblowers protection would have necessarily revealed the substance of their disclosures and adversely affected those who had control over the authority.
The 2020 and 2021 European Union Rule of Law Reports note that the law on the protection of whistleblowers has had a very limited impact in Malta. This indicates that the law fails to offer potential witnesses the reassurance from retaliatory protection. The law approved yesterday did not address this problem.
Another problem with the new law is that for a whistleblower to be protected they will have to prove that they have suffered retaliation for speaking out. The European Directive is clear that the burden of proof should be on the employer to show that any action taken against an employee is wholly unrelated to any revelations they have made about wrongdoing. Worse still, the Maltese law makes an exception that an employer can retaliate against the employee who reveals something wrong if they can show retaliation is "justifiable for administrative or commercial organisational reasons". This provision will be very easy for employers to rely on to deny any employee who reveals that the employer to be doing something wrong with the protection afforded by the European Directive.
Jonathan Ferris's case illustrates what potential witnesses face.
The new law is full of gaping holes that will severely limit the ability to protect those witnesses who deserve to be thanked instead of suffering the consequences of speaking out. This fact alone will continue to silence potential witnesses in the future as has happened so far.
In Malta, the whistleblower law has never worked. It was used only once and did not lead to a finding of guilt against any alleged perpetrators, and the court criticised the police for bringing an unfounded case. From the outside it became clear that the case against Anthony Debono was a politically motivated attack against his wife Giovanna Debono
because she was an Opposition MP. At the same time potential witnesses in massive corruption scandals involving top government officials including the prime minister, were not given protection as whistleblowers, or have said they were advised not to rely on the protection supposedly promised by the law.
Maria Efimova, one of Daphne Caruana Galizia's sources, had to flee Malta because of the risks to her safety after she revealed corruption at her employer; Pilatus Bank. Maria Efimova was recognized with a Blueprint for Free Speech Whistleblower Award for the courage of her testimony, but in Malta she was considered ineligible for protection as a whistleblower and the Maltese authorities are still pursuing her.
In September 2021, the Network of European Integrity and Whistleblowing Authorities (NEIWA) adopted a statement calling on European Parliaments to ensure that the Directive is incorporated into the laws of European countries properly. The statement recommended that authorities receiving reports of misconduct have the resources and autonomy to do their job properly and to give witnesses the protection that the law requires.
We are not surprised that no Maltese agency is a member of this network.
In our research, Repubblika spoke to Tom Devine, Legal Director of the Government Accountability Project based in Washington, USA,, who told us:
“Whilst the new Maltese transposition legislation is sophisticated, it is like a train with all the bells and whistles but a defective, dangerous engine. As a whistleblower adviser for 43 years, I would warn anyone that relying on these rights is like spending time and money to hammer the last nail in their own professional coffin. Behind all the gaudy cosmetics, this law is a Trojan horse.”
Malta needs a serious legislative framework to protect whistleblowers because Malta needs to encourage anyone with information about corruption or suspected illicit practices to speak out about what they know. This is a crucial tool if we are to fight corruption.
Further details on Repubblika's preliminary views on this theme can be found on our website repubblika.org.
Together with the Whistleblowing International Network, Transparency International and Eurocadres, we urgently call on the government to start a broad, transparent, and effective consultation on much-needed reforms to protect whistleblowers in Malta and therefore ensure a real and correct transposition of the European Directive.
Read Maltese translation on the Repubblika website.