On January 31, 2017, the Federal Law Minister introduced the Public Interest Disclosure Bill, 2017 in the National Assembly. The bill aims at providing "a mechanism for public interest disclosures to prevent corruption and corrupt practices [and] protect persons making such disclosures."

The introduction of the bill can be termed a ‘step in right direction.’ However, it is important to see whether the bill provides what it aims for or is another ‘check’ in the list of laws, introduced to protect ‘public interest’, without giving them teeth to bite? Therefore, it is necessary to first understand internationally recognised principles of ‘public interest disclosure or whistle blowers protection’ and then evaluate the bill on the basis of these principles.

The Public Interest Disclosure (PID) or Whistle-Blower Protection (WP) is not a novel idea, which Pakistan is implying through the bill. Moreover, such legislation is not a gift or blessing of the government. It is in fact a requirement of the United Nations Convention Against Corruption (UNCAC), which Pakistan signed in 2003 and ratified in 2007. Article 8 (4) of the Convention states that "[e]ach State Party shall also consider, in accordance with the fundamental principles of its domestic law, establishing measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions."

Similarly, Article 33 of the UNCAC requires that "[e]ach State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention." The International Labour Organization (ILO) also requires specific legislation for the protection of whistleblowers.

Since 1989, several countries, including the United States, the United Kingdom, South Africa, Japan and India, have enacted such laws. All these legislations provide distinctive mechanisms for PID and WP. There is no fit-for-all model that can be adopted or replicated. Each one has merits and demerits. Nevertheless, there are certain principles, which international community seems to agree upon. These principles are derived from the work of various international organisations on this issue.

Guidebook of Transparency International (TI), a global civil society coalition against corruption, on ‘International Principles for Whistleblower Legislation’ is one such reference tool. The guidebook provides three principles for whistleblower protection legislation: (i) accessible and reliable channels to report wrongdoing; (ii) robust protection from all forms of retaliation; and (iii) mechanisms for disclosures that promote reforms that correct legislative, policy or procedural inadequacies, and prevent future wrongdoing.

The guidebook further provides that the law must provide a comprehensive disclosure procedure to: (a) report within the workplace; (b) report to regulators and authorities; (c) and report to external parties. For an effective law, the guidebook necessitates presence of an independent, effective and adequately resourced ‘whistleblower complaints authority’ to receive and investigate complaints of retaliation and improper investigations of whistleblower disclosures.

In matters of disclosure concerning ‘national security or official secret’, the guidebook emphasises on putting in place "special procedures and safeguards for reporting." However, there is no ‘exemption’ for any department or information from disclosure in the guidebook. Furthermore, the guidebook requires annual ‘publication’ of data and information regarding the functioning of whistleblower laws and frameworks. According to the guidebook, this information should include: (i) number of cases received; (ii) outcomes of cases; (iii) compensation and recoveries; (iv) prevalence of wrongdoing in the public and private sectors; (v) awareness of and trust in whistleblower mechanisms; and (vi) time taken to process cases.

Compendium of Best Practices and Guiding Principles for Whistleblower Protection Legislation is another instrument, which speaks about best practices of WP laws. Prepared by the Organisation for Economic Co-operation and Development (OECD) in 2011, the Compendium reiterates the principles, mentioned by the TI guidebook. In addition, the Compendium states that the "whistleblowers are entitled to a fair hearing before an impartial forum with a full right of appeal ("genuine day in court").

When we test the Public Interest Disclosure Bill, 2017, introduced in the National Assembly last week, on the basis of above parameters, it appears that the bill falls short of the international principles and best practices of legislation for WP. The bill empowers ‘Head of the Organisation’ as ‘Competent Authority’ who may be relevant for ‘internal disclosure’ but cannot be ‘independent, effective and adequately resourced ‘whistleblower complaints authority/regulator/commission’ to receive and investigate complaints of retaliation and improper investigations of whistleblower disclosures.’

The bill is silent on PID to external parties such as media or civil society in matter of human rights and extreme public interest. This vitiates the very purpose of such law, which is meant to ‘disclose’ matters relating to ‘money laundering, fraud, embezzlement, kickbacks, commissions and other forms of corruption and corrupt practices.

Furthermore, the bill gives an over-broad definition of ‘Organisation’ including private sector body, company or entity including NGOs of national and public importance; however, it does not provide any mechanism to ensure implementation of the law beyond governmental organisations. Instead of defining terms like ‘report’, ‘ disclosure’ ‘public interest report or disclosure’ separately as mentioned by the recommendation of the Council of Europe for the Protection of Whistleblowers, the bill simply defines the term ‘disclosure.’ Moreover, the given definition of ‘disclosure’ is also vague as it contains terms like ‘willful’ and ‘substantial’ that can have relative meanings in relative situations.

The bill, in Section 06, exempts a variety of information from public disclosure. Such blanket exemption to certain information and organisations is against the purpose and spirit of the public interest disclosure. Instead of giving such blanket exemption, the bill could have suggested special procedures and safeguards to be adopted while reporting on matters of ‘national security.’

Though the bill requires preparation of ‘consolidated annual report of the performance of its activities,’ it does not obligate the authority and government to make it ‘public’. It also does not outline the content of the ‘report’. In principle, such annual report should be made ‘public’ in addition to sharing with the government and parliament. If kept secret, such reports will have no purpose and utility. Furthermore, the law must clearly provide outline of the report covering topics mentioned by TI guidebook above.

Among several other weakness and loopholes of the bill, absence of ‘right of appeal before the court of law‘ to whistleblowers makes it ultra vires to the provisions of Article 10A of the Constitution of Pakistan, 1973. Therefore, a right of appeal must be provided to whistleblowers. Similarly, the bill does not provide any safeguard to the whistleblowers against libel and defamation suits and opens the way of litigation for damages against the whistleblowers.

Despite all its limitations, the Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act, 2015 is a more detailed law than this bill. Therefore, to have a comprehensive legislation on the issue, the government must prepare an effective and resourceful bill in the light of international standards and best practices.